ACEDS 2016 eDiscovery Conference - 'The Living Dead of E-Discovery'

On Wednesday I attended a discussion entitled, “The Living Dead of E-Discovery”, a session at the 2016 ACEDS E-Discovery Conference at the Grand Hyatt in New York City. The panel included Alex Ponce de Leon, the discovery counsel for Google; Rachel See, the Lead Technology Counsel for the National Labor Relations Board; Cindy MacBean, law firm litigation support manager, and Chris Dix, an attorney with Smith Hulsey & Busey who focuses on e-discovery issues.

While this session was to focus on when law firms and their clients should delete data from case productions, the group began by noting the vulnerability of data on law firm networks. The Australian Signals Directorate (the NSA down under) has monitored the email communications of an American law firm with respect to its representation of Indonesia in trade negotiations – something Edward Snowden helped to disclose. Large law firms like Cravath Swaine & Moore LLP and Weil Gotshal LLP have been hacked.

But confidential information may be vulnerable for reasons other than cyber security breaches. Businesses face a great challenge in riding themselves of ESI they are not legally required to keep, and which should be deleting according to their own information governance policies. A case study by DuPont took a large document set that had been reviewed by contract attorneys and trained a different group of lawyers on its document retention schedules. The second group's job was to determine which documents should and should not have been in the review set – not what was responsive or non-responsive. The document retention schedules would have required 50% of the documentation to be discarded and if this had been done, DuPont would have saved $12 million.

The new version of the Electronic Discovery Reference Model has been issued which includes an enhanced verison of the information governance module, which includes a component for the disposal of data.

Rachel See noted the array of difficulties facing firms that aim to destroy data they are no longer required to retain. Litigation support departments may have stores of unlabeled electronic media; determining if data is really gone is more complicated than just taking down production databases. Aside from disaster recovery archives, data may on many other types of storage devices. There need to be policies in place to ensure back-up tapes are only kept for a reasonable period of time, and data destruction protocols should be incorporated into Master Services Agreements.

The group brought up the ethics opinion of the California State Bar (I believe they were making reference to Cal. State Bar Formal Opn. 1992-127) that a client can request data held by a law firm at any time, but may be required to pay reasonable costs.

Ponce de Leon noted how common the practice has become of clients controlling access to document databases which remain on their networks and allow them to revoke access at any time. An overall approach can be taken of minimizing how much data is released to law firms.

A member of the audience discussed how he had managed to save a client a lot of money by shutting down portions of a database which were not in active use.

Chris Dix lauded the use of the National Institute of Standard and Technology's Special Publication 800-88, Guidelines for Media Sanitization, last revised in December 2014. The guidelines are a useful reference point for talking with opposing counsel about what needs to fall under the terms of a protective order. He in particular called the groups attention to an appendix to the guidelines which is a good neutral source on how to remove data from a variety of sources – mobile devices, SCSI hard drives, ATA solid state drives, etc. - listing standards on how to either clear, purge, or destroy each type of storage device.

Mr. Dix advised that protective orders be tailored to specific cases, and not be abused. He referred to Procaps S.A. v. Patheon, Inc., Case No. 12-24356 (S.D. Fl., July 20, 2015) a case in which the court ordered the re-designation of a production after a party designated 95% of this production highly confidential – which under the terms of the protective order would prevent anyone other than an attorney from reviewing the documents. It's not hard to get data destruction provisions in protective orders.

He recommended NAID certified destruction of data (see the Tip of the Night for April 26, 2015 ) and noted that the Legal Technology Professionals Institute is preparing a guide on how to close out a case.

Developments in technology are impacting the way data is retained as well. Solid state drives don't possess moving parts and data on them will not be effected by magnetic forces (although the more traditional hard disk drives usually shield magnetic platters in metal cases). SSDs will not retain data as long as hard disk drives when they are powered off, and it is more difficult to recover deleted data from them.

Ponce de Leon noted that there are five prerequisites for sanctions to be imposed for lost data under FRCP 37(e):

1. The data has to be Electronic Stored Information.

2. It must be within the scope of what should have been preserved in the first place.

3. It actually has to be LOST – it cannot be located after a thorough search.

4. The responsible party must have failed to take reasonable steps to preserve the data.

5. The data cannot be restored or replaced.

An example of a reasonable step to get data back would be restoring just the directory structure of magnetic tapes, which can be done very cheaply.

ACEDS 2016 eDiscovery Conference - 'The Essence of E-Discovery Education'

Yesterday I attended a panel on “The Essence of E-Discovery Education” at the ACEDS eDiscovery conference in New York. The panel included William Hamilton, the Executive Director of the University of Florida's International Center for Automated Information Retrieval; Rachel See, the National Labor Relations Board's Lead Technology Counsel, and Judge James Francis IV, a magistrate judge with the United States District Court for the Southern District of New York.

This was an awfully early call for me - this blog isn't called Litigation Support Tip of the Night for nothing – but I made to the Grand Hyatt on 42nd street shortly after the panel began at 8 AM, and these are my notes on what the stellar panel discussed. Bill Hamilton noted the irony of attorneys complaining about dealing with large amounts of ESI, when the data simply gives them more evidence about what happened in a matter. He recalled that before the era of electronic discovery lawyers often didn't get a handle on cases until the deposition phase. He also note that rise of electronic discovery has seen a decline in the apprenticeship model when attorneys closely trainined junior associates. Judge Francis, while joking that gaining a reputation as a techie came with the risk of judges eyes glazing over when you rose to speak, pointed out the need for lawyers to receive a common foundation in electronic issues. He notices attorneys with different levels of competence – or who have knowledge in different silos. With this comes attorneys who have significant blind spots. Lawyers may know a lot about laws concerning preservation but are unaware of the auto-deletion processes in information management systems. A litigation support analyst may be very proficient at processing data, but not be able to grasp the legal principles regarding the preservation of meta data. Mr. Hamilton's outline for the discussion categorized electronic discovery as a combination of disciples (technology, practice, and legal principles),. He talked about the pedagogy of the field and emphasized the importance of spaced practicing, and interleaving – or the mixing together of the practice of different skills at once. The student needs to elaborate (relate studying to what she already knows); generate (solve problems); reflect (review what she learned); calibrate (adjust her judgment to reality); and employ mnemonic devices (tricks to remember). The book, Make It Stick was recommended as a guide to modern teaching techniques. Rachel See noted how the use of Six Sigma principles at a law firm she worked at for tasks like the preparation of appellate briefs and so forth was mind blowing for some people. Six Sigma is a business strategy developed at Motorola and popularized by GE that aims to minimize defects and reduce variability in internal processes. George Socha, one of the founders of the EDRM, was in the audience, and described his experience advising a 60 lawyer firm that was doing an audit of its own electronic discovery practices. He found that the associates wanted more training so they could make effective use of Relativity. The panel discussed the need to teach practical skills and used the example of document database searching – a defensible search isn't simply a question of using key words in an appropriate combination. Judge Francis talked about a conference he attended for other judges, and how interested they were in in the process of document review. They wanted to practice how to code documents, and see how linear review compared with technology assisted review. He described judges as being very good at top level review and case management, but generally have a poor background in computers.

Lexis LAW PreDiscovery - Grid Displays

Lexis LAW contains some useful features for manipulating data displayed in the grid view of query results. Note that different options are displayed in the standalone grid that are not available in the embedded grid for query results. If you filter down the results to certain selected values you can get a quick count of the total number of documents and pages in the selection by going to View . . . Doc/Page Totals.

To export a list of text files generated by the system for the purposes of transferring the data to another system, go to Tools . . . Build Control List. A text file will be created with the Beg Bates number (or if that has not been entered, the Doc ID number) and a path to existing location of the text file, or a new location that you choose to copy the text files to.

Note that by default Lexis limits the number of text files that can be exported at one time to a 1000. You can change this setting by editing the 'law50.ini' at the root of the program folder. You either enter or change the value, "ControlListFileLimit=1000" in the Summation section.

LAW is also capable of exporting email messages to an Outlook .pst folder. It will export messages and their attachments that originated in such an archive, or loose .msg or .eml files. However LAW will not able to export messages for the purpose of exporting to .pst archive that have been moved since they were imported into LAW.