eDiscovery for the Rest of Us: eDiscovery Best Practices, Part Two

by CloudNine
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Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part One was published on Tuesday.  Here’s Part Two.

eDiscovery: The Early Years

The first formalized changes to the Federal Rules of Civil Procedure were made in December of 2006 as the culmination of a period of debate and review that started in March 2000. Prior to the codified changes, there were several prominent lawsuits touching on the subject, most notably the matter popularly known as the Zubulake case. (Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003))

Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS’ own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation’s counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS.

That case and the subsequent rule changes effectively forced civil litigants into a compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks that litigants then began to face because of improper management of ESI include spoliation of evidence, adverse inference, summary judgment, and sanctions. In some cases, such as Qualcomm Inc., v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008), attorneys were even brought before their state bar association to answer to charges of misconduct.

At roughly the same time, the EDRM was started to deliver leadership, standards, best practices, tools, guides, and test data sets to improve electronic discovery work flow processes.  The original EDRM project (it is now owned by Duke University School of Law) came up with the following chart to show a general work flow for eDiscovery projects.

The problems faced by these new rules was the multiplicity of data in electronic formats. Examples of the types of data included in e-discovery are not just documents but e-mail, databases, web sites, instant messaging and any other electronically stored information that could be relevant evidence in litigation. Also included in e-discovery is “raw data”, which Forensic Investigators can review for hidden evidence.

Litigators may review material from e-discovery in one of several formats: printed paper, PDF images (with or without searchable text) or as single- or multi-page TIFF images. The original file format is also known as the “native” format.

The EDna Challenge, 2009

In 2009, noted e-discovery consultant Craig Ball wrote a fascinating article in Law Technology News called  “E-Discovery for Everybody.”  That column came to be known as the “EDna Challenge” (Craig likes visual puns) because in it, Craig posited a solo practitioner named Edna with an e-discovery budget of $1,000 and asked how she could possibly perform any e-discovery on that amount.  He then solicited a wide-ranging number of answers from a variety of consultants and vendors and compiled them into the article, which is now posted on his website at http://www.craigball.com/E-Discovery%20for%20Everybody.pdf .

Craig asked people to suggest a program or programs with the following criteria:

  1. Preserve relevant metadata;
  2. Incorporate de-duplication, as feasible;
  3. Support robust search of Outlook mail and productivity formats;
  4. Allow for efficient workflow;
  5. Enable rudimentary redaction;
  6. Run well on most late-model personal computers; and
  7. Require no more than $1,000.00 in new software or hardware, though it’s fine to use fully-functional “free trial” software so long as you can access the data for the 2-3 year life of the case

The problem as Ball defined it still exists now:

“The vast majority of cases filed, developed and tried in the United States are not multimillion dollar dust ups between big companies. The evidence in modest cases is digital, too. Solo and small firm counsel like Edna need affordable, user-friendly tools designed for desktop eDiscovery — tools that preserve metadata, offer efficient workflow and ably handle the common file formats that account for nearly all of the ESI seen in day-to-day litigation. Using the tools and techniques described by my thoughtful colleagues, Edna will get the job done on time and under budget. The pieces are there, though the integration falls short.”

However, Craig did offer a little future optimism here:

“One possible bright spot was the emergence of hosted options. No one was sure the job could be begun–let alone completed–using SaaS on so tight a budget; but, there was enough mention of Saas to make it seem like a possibility, now or someday soon.”

And what about cases that fall between the Edna budget limit of $1,000 and major litigation like Pension Committee, a $550 million case arising out of the liquidation of hedge funds? (Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010)?

We’ll publish Part 3 – The Ernie Challenge – next Tuesday.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?

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