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This year, the Georgetown University Law Center is holding its 7th Annual Advanced e-Discovery Institute in Arlington, VA. The line up of speakers includes a who’s-who of e-Discovery in the U.S., including the Hon. Paul W. Grimm (Victor Stanley) and the Hon. Shira A. Scheindlin (Zubulake and Pension Fund).
The topics discussed on the first day ranged from a review of e-Discovery rulings in 2010 (at last count, there were over 250 cases this year with specific e-Discovery rulings), Proportionality, the Business of e-Discovery, and a compelling discussion about International e-Discovery. The first session was a roundtable discussion by six judges. It was generally felt that this year could easily be branded the year of e-Discovery sanctions. While the number of sanctions related to e-Discovery negligence was not great (the four most well known were Pension Fund, Rimkus, Southern New England Telecom and Victor Stanley), the number of cases where sanctions were considered has increased dramatically. Other topics included cooperation, proportionality, obtaining ESI from outside the U.S. and obtaining ESI from third parties (particularly ESI hosting vendors, i.e. the cloud). A session on the nature of the e-Discovery industry was extremely interesting. The panel and audience agreed that in-sourcing e-Discovery will continue, but will in all likelihood not become the norm. While e-Discovery software certainly makes in-sourcing easy enough, the big stumbling block was viewed as the lack of sufficient qualified people to perform the work. Most of the session centered around the question of whether the market can deliver “cheap and correct” e-Discovery. The general consensus was that the status-quo will continue until the decision makers realise that e-Discovery is as much an IT process as it is a legal process. Although it wasn’t discussed in any great detail due to lack of time, one forecast of the e-Discovery landscape in 2020 was that it would no longer exist. Of course, discovery would still be around, but by 2020, organizations would have a good handle on the management of their records, and the documents needed for litigation would be available at the click of a mouse…assuming mice are still around in ten years! Tomorrow’s discussions look to be just as interesting. Stay tuned for part two of this special blog report. As expected, the second day of the Georgetown University Law Center’s 7th Annual Advanced e-Discovery Institute contained as compelling topics as the first day.
Craig Ball led an informative session on databases, explaining what relational databases are, how information is retrieved from these storage systems, and most importantly from an e-Discovery point of view, how the data within a relational database can be preserved and produced. The importance of this issue was highlighted through an interesting statistic Craig presented – in enterprises, 47% of all ESI is stored in a structured manner. A lot of emphasis is placed on the 31% of unstructured information (documents, spreadsheets, etc) and the 22% of semi-structured information (emails, instant messages), but almost half of all ESI in an organization is routinely ignored. The afternoon was highlighted by discussing the cloud and associated technologies (social media, multi-tenancy, interactive websites, Wikis, virtualization and avatars). It was generally agreed that this is both a misunderstood area and of great concern to the legal community. Issues surrounding this arena run the gamut of e-Discovery, including preservation, collection, authenticity, control of content, and privacy. Circumstances that have never been addressed before are now moving to the forefront. For example, when an organization is using cloud storage that is co-mingled with other organizations’ data (a common occurrence in the cloud) and a litigation hold is place on the data, does this mean unrelated organizations’ data is also preserved by association? Or when someone is using an alias identity (an avatar) on the internet, how does one go about attributing an act to a person or authenticate what was carried out? While the future is definitely going to see an evolution in the way discovery is carried out, the good news is that the e-Discovery legal community is being very proactive in reviewing and analysing emerging IT trends. New cloud computing guidelines are already on the way to address at least some of the anticipated issues. A study conducted as part of the 2009 Legal TREC found that conducting enterprise wide automated content analysis returned significantly more relevant documents than employing traditional culling-based methodologies.
To conduct its research, ZL Technologies had two teams – one using content analysis and the other employing manual culling, search through nearly 3 million emails from more than 100 mailboxes of Enron employees. The results found that culling by first selecting custodians and then applying keyword filters led to incomplete information upon which to base their important legal decisions. The team failed to find 84% of relevant documents and only found four employees storing relevant information. The content analysis team, however, successfully found all relevant documents and identified all 77 relevant employees. Of course, the above results are based in part on the skill, or lack thereof, of the people who made up the culling group in developing good search terms. This was highlighted recently in Victor Stanley, Inc. v. Creative Pipe Inc. In his May 29 opinion, U.S. Chief Magistrate Judge Paul Grimm faulted the defendant’s keyword search methodology. “[W]hile it is universally acknowledged that keyword searches are useful tools for search and retrieval of [electronically stored information], all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review”. While a less than 100% accurate production is obviously a concern, the test should not be perfection. Instead, the litigator should be confident that the method used in deciding how to cull documents is reasonable. While that means that some records could potentially fall through the cracks, holding one to a standard of perfection is contrary to the concept of proportionality. Essentially, if you spend too much time being nervous about having a perfect collection and culling process, your results will not be cost-effective or practical. The process must be balanced – err on the side of caution, but with a reasonable approach. |
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