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Declining Law Firm Productivity Tied to Information Governance Challenges

A new legal industry study finds a substantial decline in attorney productivity in recent years, significantly reducing law firm profitability. In its 2017 Report on the State of the Legal Market, Thomson Reuters notes that “over the past 10 years, the average billable hours worked by all lawyers across the market declined from 134 billable hours per month in 2007 to 122 through the late part of 2016.” This equals a reduction of 144 billable hours per year per lawyer. The report, by multiplying that total by the average worked rate ($463) for all lawyers in 2016, determined the productivity decline is costing law firms about $66,672 per lawyer per year.

One of the main causes for diminished lawyer productivity is the exponential proliferation of their stored emails and documents and the associated inability to recall important work product and previous e-mail communications. Another industry study assessing the productivity of lawyers and other high-end information knowledge workers found that such professionals on average spend 11.2 hours a week dealing with challenges related to document creation and management. As the table below from the IDC report demonstrates, lawyers and paralegals lose as much as 2.3 hours a week searching, but not finding, the right documents and emails and another 2 hours recreating documents they failed to locate.

Time Spent on Document Management Challenges

productivity-for-law-firms-table2Source: IDC’s Information Worker Survey, June 2012

Applying the same lawyer cost calculations used by Thomson Reuters in their 2017 report (4.3 hours per week X $463 average hourly rate X 49 annual worked weeks) reveals that an effective search capability can dramatically improve law firm productivity by as much as $97,500 annually per lawyer. Even normalizing this analysis for recovered billable time (assuming every hour of gained productivity results in less than a full hour of actual billable time) a law firm of a 1000 attorneys would realize tens of millions per year in recovered billable hours, in addition to important intangible benefits including enhanced work product, improved client satisfaction and attorney morale.

Many law firm attorneys tell us that without the right search solution, they can spend hours looking for a past proposal, a key client communication from several months prior, or many other forms of work product and client communications that are stored in emails, local drives or cloud file shares. If lawyers and paralegals cannot quickly find such information assets, then that represents a serious information governance failure. Time wasted rummaging around for past emails and documents is not billable time and directly cuts into a firms’ profit margin. To be sure, a law firm’s two most important assets are its professionals and their body of work product and other key information. As such, a top priority for law firm management should be to ensure their attorneys have the right productivity search solution to quickly find and retrieve the firms’ information assets.

However, the recurring theme we hear is that outside of the data managed by X1, enterprise search is a source of major frustration for law firms and other organizations. This is confirmed by survey after survey where the vast majority of respondents report dissatisfaction with their current enterprise search platform. Simply put, the traditional approach to enterprise search has not worked. This is largely because most search solutions deployed in recent years focused on IT requirements — which see search as either a technical project or a commodity — rather than an intimate end-user driven requirement that is core to their professional productivity.

And for lawyers especially, “good enough” is not good enough when it comes to their search. It does not make sense to invest in an enterprise search solution for business productivity search, unless there is a significant improvement in the end-users search experience for emails, files and SharePoint data.

At X1, however, many of our customers report dramatic improvements with their productivity search, with firm-wide X1 rollouts being major wins at their organization. We believe that X1’s unique focus on the end-user is the key. You won’t find many other business productivity search solutions where the end users drive demand, instead of the tool being imposed on the end-users by IT or systems integrators. We continually hear countless testimonials from business professionals, at law firms and companies large and small, who swear by their X1 and cannot imagine working without it. In speaking with industry analysts and other experts in the enterprise search field, this is an almost unheard of phenomenon, where end-user satisfaction with the companies’ enterprise search platform is usually around 10-15 percent, verses the 80-85 percent satisfaction ratio we see with X1.

Importantly, X1 is a platform. Users need a single-pane-of-glass view to all of their information – email, files, SharePoint, archives like Veritas Enterprise Vault, OneDrive, Box and other network and cloud sources.  X1 Search provides a user-friendly interface to all information that lets attorneys find what they are looking for in an instant.  But the thousands of X1 end users know all this. The key takeaway for CIOs and other IT executives is that search is an inherently personal user experience, and the number one requirement, by far, for a successful search initiative is enthusiastic end-user adoption. If the lawyers and other business professionals in your organization are not passionately embracing the search solution, then nothing else matters.

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Criminal Conviction Overturned Due to Failure to Authenticate Social Media Evidence

Law Journal for webUnder our ongoing effort to monitor legal developments concerning social media evidence, we again searched online legal databases of state and federal court decisions across the United States — this time to identify the number of cases in January 2017 where evidence from social networking sites played a meaningful role in the litigation. The initial search returned over 2,000 results. That is far too many to review manually, but through random sampling to eliminate duplicates and de minimis entries — defined as cases with merely cursory or passing mentions of social media sites — we counted over 1,200 cases accessible through Westlaw and/or Google Scholar for January 2017.

And as only a very small number of cases — approximately one percent of all filed cases — involve a published decision or brief that we can access online, it is safe to assume that tens of thousands more cases involved social media evidence during this time period. Additionally, these cases do not reflect the presumably many hundreds of thousands of more instances where social media evidence was relevant to a corporate or law enforcement investigation yet did not evolve into actual litigation. Even so, this limited survey is an important metric establishing the ubiquitous nature of social media evidence, its unequivocal and compelling importance, and the necessity of best practices technology to search and collect this data for litigation and compliance requirements. There is no question that nearly every criminal investigation and civil litigation matter involves at least some social media and internet-based evidence.

The following are a brief synopsis of five notable cases from the survey:

Brown v. State, (Ga: Supreme Court, January 23, 2017). In this case, the prosecution presented key evidence from a variety of social media sources, including a “cropped screenshot” from a YouTube video, several incriminating Facebook postings and a copy of a photograph downloaded from a Twitter account. The items were admitted into evidence and the defendant was convicted on all counts. However, a motion for new trial was brought on the basis of challenging the authenticity of the social media evidence introduced as screen shots. The court overturned the conviction on one of the counts (count of criminal gang activity). The Georgia Supreme Court upheld that ruling but determined that improper authentication was a harmless error as to the remaining counts that Defendant was also convicted on.

State v. Kolanowski, (Wash: Court of Appeals, January 30, 2017).  In another case involving the failure to authenticate social media evidence, a criminal defendant unsuccessfully sought to admit a screenshot of Facebook evidence that he maintained would have served as critical impeachment against the prosecutions’ main witness.  During pretrial motions, the State sought to exclude Facebook records that lacked foundation, and the defendant sought to admit a March 2015 screenshot of what purported to be a 2:49 a.m., February 8, 2014 Facebook post. The authenticity of that screenshot was successfully contested. It is apparent from the record that various metadata and other circumstantial evidence was not available (which could have been collected using best practices technology) that very well may have served to establish a proper evidentiary foundation.

ZAMUDIO-SOTO v. BAYER HealthCARE PHARMACEUTICALS INC. (US Dist. Ct, ND California, January 27, 2017). In this matter, a major product liability claim was barred on statute of limitation grounds based exclusively on the Plaintiff’s comments on her Facebook post.  Plaintiff’s Facebook comments drew a connection to her injury and the alleged defective product in question, and was posted on May 26, 2011, more than two years prior to her filing suit against Bayer. The court determined that Plaintiff’s Facebook post started the clock for her to bring her claim within the two year statute of limitations period. However, as she did not file her suit until January 2015, the court ultimately barred her action.

Jacobus v. Trump, (NY Supreme Court, January 9, 2017) This high-profile libel case is notable in that the claim against then-candidate Donald Trump was exclusively based upon social media evidence in the form of two separate tweets. Plaintiff Jacobus is a Republican political consultant and frequent commentator on television news channels and other media outlets, who was contacted by the Donald Trump campaign to potentially serve as a key staff member. After several meetings, Plaintiff ultimately did not join the campaign, based upon what she asserts was a mutual decision.  A few months later, Jocobus appeared on CNN where she made some comments that were critical of Trump. In response, Trump tweeted:  “@cherijacobus begged us for a job. We said no and she went hostile. A real dummy!”  A day later, on February 3, 2016, Plaintiff’s then lawyer sent Trump a cease and desist letter. Two days after that, Trump posted the following tweet about Plaintiff: “Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!” Ultimately the court construed Trump’s comments to be “hyperbolic” opinion, based upon subjective perception of events, and thus did not constitute defamation under the law, and thereby dismissed Jacobus’s claim.

Johnson v. ABF Freight System, Inc. US Dist. Court, MD Florida, January 27, 2017. This opinion is based upon a motion to compel discovery of the Plaintiff’s Facebook account. The Defendant asserted that Plaintiff’s Facebook account would be relevant to his damages claims arising out of a serious personal injury claim. The Court granted the motion to compel, but limited the production of the Facebook account to a certain date range and also only information that related to his employment and business activities and efforts to gain employment.

There is no question that the volume of cases involving social media evidence is increasing on a monthly basis. In addition to case law, another metric reflecting the industry’s standardization of social media evidence collection is the sheer volume of sophisticated customers that have now adopted X1 Social Discovery. Nearly 500 eDiscovery and computer forensics services firms have at least one paid copy of X1 Social Discovery. I cannot think of a single service provider in the eDiscovery space that performs at least some ESI collection services that does not have at least one paid X1 Social license. Social media evidence collection is now a standard practice in many law enforcement matters as well. So, if you are one of the minority of digital investigative or eDiscovery professionals who have not adopted X1 Social Discovery, please contact us for a demo today.

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Federal Evidence Rule 902(14) is Immediately Applicable for ESI Collections

X1 and Reed Smith recently hosted a timely webinar on new Federal Rule of Evidence 902(14) and its expected impact on eDiscovery and computer forensics collection practices. Reed Smith senior partner and eDiscovery practice chair David Cohen led the discussion, providing a substantive and detailed discussion on the new rule, including its nuances and expected practice impact. FRE 902(14) provides that electronic data recovered “by a process of digital identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed, as certified through a written affidavit by a “qualified person.” A detailed discussion of Rule 902(14) can be found here.

The webinar, which also provides a detailed overview of the rule, features excellent analysis and insight from David Cohen on how he anticipates the new rule will be applied. In fact, the key takeaway from the webinar is that while FRE 902(14) technically goes into effect on December 1, 2017, Cohen correctly noted that ESI collected in a Rule 902(14) compliant manner any time prior to the rule’s effective date can be subject to the new rule’s provisions once the rule goes into effect. This is important, because digital evidence is routinely collected well in advance of trial. Electronic evidence that an examiner collects today may not be actually introduced at trial until one year or more from now, so practitioners need to understand and account for Rule 902(14) immediately.

Cohen believes that FRE 902(14) will be widely applied and will overall increase the utilization of eDiscovery and computer forensics practitioners. This is because the rule provides a streamlined and very efficient process to establish a foundation for ESI collected in a Rule 902(14) manner. This will increase predictability by eliminating surprise challenges, and will encourage, instead of discourage, the use of forensics and eDiscovery practitioners by allowing written certifications in the place of expensive and burdensome in-person trial testimony. Cohen also noted that while most cases do not proceed to trial, a much higher percentage involve dispositive court motions (such as a motion for summary judgment in civil actions) and he expects FRE 902(14) to be widely used in support of such motions.

I have covered eDiscovery and computer forensics law for over 15 years, and in my opinion, FRE 902(14) is the single most important legal development directly impacting ESI collection practices to date. All eDiscovery and computer forensics professionals have a professional responsibility to keep current with key legal and technological developments in the field. There is no question FRE 902(14) is such a development, and all those involved in ESI preservation and collection from both a technical, legal and managerial perspective need to be fully briefed on the law.

Viewing the video recording of the webinar is a good start, and it can be accessed here.

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Federal Rules Advisory Committee Provides Key Guidance on Authenticating Social Media Evidence

Recently, the Advisory Committee on the Federal Rules of Evidence published an important treatise, “Best Practices for Authenticating Digital Evidence.” The Advisory Committee is an arm of the Judicial Conference of the United States, which drafts all proposed Federal Rules of Civil Procedure and Evidence, which the US Supreme Court and Congress ultimately ratify. Their advisory committee publications are given great weight by the courts in applying the Federal Rules of Evidence.  In fact, in the official minutes from its April 29, 2016 meeting, the Committee noted it considered whether to draft new specific Federal Rules of Evidence to govern authentication of electronic evidence, opting instead to draft the official best practices guide to serve as an accompaniment to the Federal Rules:

“The Committee concluded that amendments regulating authenticity of electronic evidence would end up being too detailed for the text of a rule; they could not account for how a court can and should balance all the factors relevant to authenticating electronic evidence in every case; and there was a risk that any factors listed would become outmoded by technological advances.

The Committee unanimously concluded, however, that publication of a best practices manual on authenticating electronic evidence would be of great use to the bench and bar. A best practices manual can be amended as necessary, avoiding the problem of having to amend rules to keep up with technological changes. It can include copious citations, which a rule or Committee Note could not.”

Federal District Court Judge Paul Grimm is the lead author on the best practices guide. Judge Grimm is widely seen as the one of the most influential judges concerning electronic discovery issues. He is known for several ground breaking decisions in the field including Lorraine v. Markel (2007), and Victor Stanley, Inc. v. Creative Pipe Inc. (2008), and The American Lawyer profiled him as one of the top 5 judges at the forefront of eDiscovery.

The best practices guide includes a very notable section dedicated to Internet website and social media evidentiary authentication, noting that “Parties have increasingly sought to use social media evidence to their advantage at trial.  A common example would be a picture or entry posted on a person’s Facebook page, that could be relevant to contradict that person’s testimony at trial.” However, “authenticity standards are not automatically satisfied by the fact that the post or the page is in that person’s name, or that the person is pictured on the post.” The guide notes that where affirmative direct testimony of the actual author is not available (which is often in the case of “smoking gun” type evidence), then circumstantial evidence is required for authentication.

As noted in the guide, absent uncontroverted and cooperative witness testimony, lawyers must turn to circumstantial evidence to help establish an evidentiary foundation for social media evidence. The guide provides many examples of circumstantial evidence that can be used to authenticate social media evidence. For instance metadata is particularly important as a “distinctive characteristic” under Rule 901(b)(4), as social media items contain a wealth of key metadata that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question.

In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the evidence presented is what the proponent asserts. See, Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and also referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).

One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” in order to present the best case possible for authenticating social media evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts and general web pages in a thorough manner with best-practices technology specifically designed for litigation purposes.  There are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries, or any combination of them could provide unique circumstantial evidence that would establish foundational proof of authorship.

The bottom line is that, as reinforced by the Federal Rules Advisory Committee, collection and preservation of all the metadata and other critically important circumstantial evidence, which can be effectively obtained with tools like X1 Social Discovery, is absolutely essential to an effective social media discovery practice.

 

 

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New Sedona Commentary Provides Guidelines for Defensible eDiscovery Collection and Early Data Assessment

The Sedona Working Group on Electronic Document Retention & Production (WG1), recently published for public comment a Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process (“The Commentary”). According to the authors, “the Commentary seeks to address what should be done to prepare for—or better yet, avoid—challenges to process, and how courts should address those disputes that arise.” Public comments are invited through November 15, 2016.

The Commentary provides excellent insight and guidance on many aspects of eDiscovery, with an extensive discussion on defensible ESI collection and culling that is particularly instructive for larger enterprises. This is important, as ESI is growing exponentially and even with the advent of predictive coding, the costs associated with ESI over-collection are often astronomical. The only way to reduce that pain to its minimum is to employ a smart but defensible process to control the volumes of data that enter the discovery pipeline. So the holy grail for large enterprises is a truly scalable capability that targets only potentially relevant ESI for collection. The Commentary provides general guidance on the reasonableness and defensibility of such a capability.

For instance, Principal 7 of the Commentary provides that “A reasonable e-discovery process may use search terms and other culling methods to remove ESI that is duplicative, cumulative, or not reasonably likely to contain information within the scope of discovery.” Comment 7.c notes in part that “search terms are a defensible technique for limiting the number of documents for review and production, provided that care is taken in their development and use.” Additionally, an iterative search process is recommended: “In an iterative process, information in documents returned by the first list of search terms can help attorneys to further refine existing terms or to identify new terms that should be added in subsequent rounds. This process can continue until a reasonable result is achieved.” It is also recommended that the search process be subject to validation and be properly documented.

Also instructive in The Commentary is a hypothetical “illustration” that reflects a smart and effective approach to an enterprise level ESI collection and preservation process:

“Illustration: The responding party has determined that the most efficient way of preserving discoverable emails is to collect the emails that “hit” on a broad set of search terms, rather than to modify the company’s default 30-day retention policy or rely on individual custodians to manually preserve potentially discoverable documents. Since a later determination that the responding party’s search terms were too narrow could come too late to prevent the loss of discoverable information, or cause a significant delay or expense from efforts to restore lost emails from back-up media, it may be prudent for the responding party to notify or seek agreement from the requesting party about the planned preservation approach and the specific search criteria to be applied.”

While the above-cited guidelines are very instructive for a well-designed, cost-effective and defensible process, such a goal is only attainable with the right enterprise technology. With X1 Distributed Discovery (X1DD), parties can perform targeted search and collection of the ESI of hundreds 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%), thereby bringing much needed feasibility to enterprise-wide eDiscovery collection that can save organizations millions while improving compliance.

And in line with concepts outlined in The Commentary, X1DD provides a repeatable, verifiable and documented process for the requisite defensibility. For a demonstration or briefing on X1 Distributed Discovery, please contact us.

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