e-Discovery Team

Welcome to the e-Discovery Team Blog by Ralph Losey who can be reached at ralph.losey@gmail.com. Ralph is a lawyer in private practice with a background in litigation and computers since 1979. He is a shareholder of Akerman Senterfitt, a law firm founded in Orlando, Florida in 1920. Akerman is an AmLaw 200 law firm with offices throughout the country. Ralph is the founder and co-chair of Akerman’s e-discovery practice group and now limits his practice to e-discovery law and IT law, with special experience in high-tech industries, Qui Tam government fraud cases, and ERISA benefit suits. See the important disclaimer and notice about this blog, which is his own creation and has his own views, not that of his law firm. Ralph is also an Adjunct Professor of Law at the University of Florida and author of numerous legal publications in the field of e-discovery, including the leading American Bar Association books on the subject: Introduction to E-Discovery: New Cases, Ideas, and Techniques (ABA 2009), and  e-Discovery: Current Trends and Cases (ABA 2008). His next book will be published by West Thomson Reuters and entitled Electronic Discovery: New Ideas, Trends, Case Law, and Practices. It is expected in February 2010, and, like his first two books, is derived from these e-Discovery Team blogs.

As the name of this blog suggests, it pertains to all aspects of Electronic Discovery and stresses the team approach. It is designed for all levels and types of readers, from litigators with years of experience in e-discovery,  sophisticated in-house counsel, beginning lawyers and paralegals, and law students, to non-lawyer IT experts and other professionals in the growing fields of e-discovery and information management. These essays discuss the unique problems of e-discovery, and the latest trends, case law, and events in this field. These blogs also explain in detail one part of Losey’s solution to the problems of e-discovery, an interdisciplinary team approach, led, but not dominated by, technologically savvy lawyers. Naturally, the views and opinions expressed here are Losey’s own, and not those of his law firm or clients.

The world as we know it today is dominated by computers and other technologies. This is not a passing fad; it is a new culture.  An information and technology age is rapidly replacing the old ways in every field, including the law. This is particularly evident for companies and attorneys involved with litigation. They must not only understand the law, and the facts of a dispute, but also the organization’s computer systems and data retention practices. The failure of otherwise excellent in-house counsel and their trial lawyers to understand the new technologies and their impact on evidence and discovery has led to some spectacular losses over the past decade by some of the top corporations in the country and the law firms that represent them. The December 1, 2006, changes to the Federal Rules of Civil Procedure, and recent case law, especially Zubulake, have only intensified the problem.   Check out my “right brain” creative interpretation of this situation in the e-Discovery Team video found in the ”Blog Videos” widget at the bottom of the right sidebar.

If a large organization is involved in litigation, and that includes almost every large company and branch of government, it must solve this problem, fast. My solution (which at this point appears to the consensus solution) is formation of an e-Discovery Team, an interdepartmental group comprised of lawyers, IT and management. It rests on the three pillars of knowledge essential to effective e-discovery: Information Science, Law and Technology.

I assist my clients to form their own internal, e-discovery response teams. Along with other attorneys in my law firm we serve as the Team’s coach and trainer. Experience shows that the well-coached and well-trained client Team is the best way for large organizations today to control the otherwise high risks and costs of e-discovery. I and others in my law firm can also appear in Court when needed to advocate the corporate Team’s position, and partner with local counsel to make sure that e-discovery is done right.

Please let me know your ideas and comments concerning this blog. You can send me a personal email at ralph.losey@gmail.com. Also, please feel free to leave any non-commercial comments to this blog, which can be read by all.  I retain all copyrights and may need to edit comments, but I welcome dissenting views.

The graphics below provide an overview of the entire e-discovery process from the client’s perspective. The nine step flow chart is based on the industry standard “Electronic Discovery Reference Model” now under development by a group of e-discovery vendors, law firms, and consultants. After the graphics, Ralph provides a short synopsis of each step.

Under Ralph’s variation of the model shown below, the first four steps are performed by the client’s internal corporate Team, as coached by his law firm. The last four steps are performed by local counsel, with help and assistance as needed by the Team. The middle step of Processing is begun by Losey’s Team with initial file filtering, but completed and supplemented by local counsel in connection with their Review and Analysis. The first chart illustrates how the volume of data decreases and the relevance increases as the work progresses. The second chart traces the life cycle of the first step, Records Management, which includes the key step of formation of the internal corporate e-discovery Team, and the next eight steps: Identification, Preservation, Collection, Processing, Review, Analysis and Production.

1. Records Management a/k/a Information Management
The first step is for the client to establish or refine an internal e-Discovery Preparedness and Response Team. It typically consists of an attorney from Losey’s lawfirm, who serves as coach and trainer, and representatives from the client’s law department, IT department, key business units, and where applicable, records management and compliance departments.

Then my firm assists in the initial tasks of the Team, which typically are as follows:

a) identify and retain any outside experts and e-discovery vendors as necessary to meet the specific needs of the client;

b) meet with IT and records personnel to perform a complete inventory and map of client’s electronic data (see below for more on this important activity), and, in the process, obtain a clear and detailed understanding of the client’s overall IT architecture and computer systems;

c) interview key personnel to study and understand the various life cycles of the organization’s records as shown in the Records Life Cycle diagram below;

d) prepare a computer network and data location map and consider possible redesigns to facilitate preservation and production, including E-Mail Filtering and document Archiving systems;

e) prepare a form affidavit on computer systems and data, costs and inaccessibility;

f) establish or refine standard litigation hold procedures; and,

g) totally rewrite the existing Records Management Policy Manual, addressing issues of Duplicate Management, Metadata, Storage and Disposition, and thereafter assist in implementation, ongoing audits and enforcement, and all subsequent technology upgrades.

The last step in Records Management, which is tied to the revision of the Policy Manual, is to analyze and, where appropriate, implement a Rule 37(f) Safe Harbor Destruction program in accord with a records life-cycle desired by the company and in compliance with all governing laws.

2. Identification
Study the complaint, or reasonably anticipated dispute or government investigation, to evaluate the general scope of the electronic and paper data that may fall within the discovery requirements of the dispute, including initial disclosure, and any outstanding discovery requests, retention letters, or orders. Analyze possible objections and defenses to unreasonable requests. Formulate counter-e-discovery plans.  Identify and directly communicate with all relevant centralized IT personnel and data custodians.  Categorize possible relevant data sets by degree of accessibility into live, ready-archival, and back-up.  Analyze the metadata and embedded data characteristics of the identified databases and whether this may be relevant to the dispute. Identify all sources of discoverable information; the location of all discoverable data, including distributed data or third party data still owned or under control of the company. Refer to previously prepared Map. Prepare for and participate in the initial Meet and Confer sessions with opposing counsel and the Court, and any subsequent hearings related to e-discovery.  Reach agreement with opposing counsel, or apply for relief from the Court, early in the case, as to Identification, Preservation, Collection, Processing and Production procedures, including format of production (native or TIFF), clawback and confidentiality agreements.

3. Preservation
Ensure that all electronically stored information is protected against destruction or alteration. Prepare and circulate Litigation Hold written communications by senior management or in-house legal counsel, providing copy to all relevant data custodians, including witnesses. Implement litigation holds where feasible by automated processes, and, where a large number of players are involved, utilize system-wide keyword searches. Consider whether forensic data capture may be necessary if potentially relevant files have been deleted, written over or damaged, or if there is reason to believe there is hidden or encrypted data on a system. Determine general parameters of what data needs to be preserved for possible later harvesting. Calendar the applicable backup deletion schedules and place on hold where appropriate. Suspend or modify all janitor programs and related procedures. Generally preserve on a very broad basis, be selective in collection, and even more selective in production.

4. Collection
Identify and list all categories of possibly relevant data that have been preserved, but not scheduled for initial search and harvest, due to inaccessibility under Rule 26(b)(2) (which primarily means unreasonable or disproportionate cost and effort), unlikely relevance, or other reasons. Interview key players regarding key words used so as to prepare appropriate search terms and Boolean logic, and to confirm date ranges, players, and file type inclusions. Attempt to reach agreement in Rule 16(b) conference with opposing counsel as to applicable search terms and deduplication parameters. Prepare technical plan for the actual data gathering with significant input from outside vendors. Implement plan and begin data collection from all applicable sources (tapes, drives, portable storage devices, networks, etc.). Direct supervision of technician activities to supervise valid chain of custody and authenticity protocols, including full preservation of metadata, MD5 or SHA-1 Hash authentication, labeling, and identification. Meticulous record keeping and documentation as to procedures and sources is required throughout the collection process. Data sampling of backup tapes may be required at this stage, wherein later processing will determine whether additional restoration is required.

5. Processing
Reduce the overall set of data collected by filtering out files that are duplicates, or known to be irrelevant. Files that are probably not relevant because of factors such as date, type or origin may also be excluded at this step. Hot files may also be flagged at this stage, including obviously adverse or potentially embarrassing materials. Consider the relationships between the files or documents obtained to better understand what data has been harvested, and determine whether additional data extraction may be required. Prepare reports to document the reduced set of computer files to be transferred to local counsel, marking what has been filtered out and why. To the extent necessary, convert electronically stored information from the native form in which it was used, to another format required by local counsel or the court.

The e-Discovery Team will maintain a full copy of all data collected, and maintain originals of any media as necessary, including backup tapes. After the Team’s initial processing, a full duplicate set of the culled data will be delivered to local counsel and vendors for further deduplication, processing, review, analysis, production and presentation. Quality control is important throughout the processing and review phases to avoid spoliation or other problems. The back-up set in the Team’s custody will serve as a safeguard should any such problems arise.

6. Review
Search and evaluate the collected data, usually for relevance, confidentiality and privilege, and related activities such as redaction. Appropriate search techniques and strategies often vary, but can include keyword, Boolean, proximity and concept searching. Segregate all privileged and confidential documents located. Prepare a Privilege Log. Large paralegal teams may be involved in this stage to review large quantities of documents.

7. Analysis
Analysis is the process of evaluating the data reviewed to determine relevant summary information, such as key issues, witnesses, specific vocabulary and jargon, and important individual documents. Typically, this step involves integration of the data into trial preparation software. Analysis is performed throughout the remainder of the process as new information is uncovered and issues of the case evolve.

8. Production
Hash marking, labeling and then delivery of electronically stored information to opposing counsel and various other recipients (co-counsel, corporate legal department, service providers, etc.) on various media (CD, DVD, tape, hard drive, portable storage device, other). Deliver electronically stored information for use in other systems (automated litigation support system, web-based repository, etc.). Verify clawback and confidentiality agreements prior to production to opposing counsel.

9. Presentation
Although this is the last stage, one should consider from the start the most effective methods to present the electronically stored information at depositions, hearings and trial.

More about Information Management and Maps. Many companies consider the first step of Information management to be hardest and yet most important part of establishing an effective e-discovery team. They try an take a short cut by not making an effective map of their systems. So here is why we think this is so important and will likely save you five dollars in litigation for every dollar invested in mapping. But first of all, what are computer maps?

Please let me know your ideas and comments concerning this blog. You can send a personal email to ralph.losey@gmail.com.