ESIgns

The Missing Weapon in the Criminal Defense Lawyers’ Arsenal

2011-05-24T21:45:00.001-07:00

By: Susan Stewart Rich, B.A, J.D

Prior to law school, I had been working with lawyers for over ten years. I found them to be a unique group of professionals who passionately immerse themselves in their work. I have been privileged to work with many attorneys who represent their clients with a high degree of ethics, skilled analytical reasoning, and compassion.

My observations over the years have led me to the conclusion that criminal defense lawyers are amongst the most committed and persevering. They, like their colleagues, obsess over details, assuring their clients are excellently represented at every step in the process. Criminal defense lawyers, however, practice the law with an especially great deal of care because they know the stakes are high. As a result, they work tireless to protect their clients’ constitutional rights.

They pour over crime reports, witness statements and every shred of evidence compulsively – yet for some inexplicable reason, many of these warriors have not recognized the importance of upgrading their arsenal with modern litigation technology.

Criminal defense lawyers should use litigation support software to manage discovery in large document cases. The use of such tools significantly decreases the labor-intensive cost associated with document reviews, increases clients’ constitutional rights, insulates legal professionals from liability and allows users to perform tasks limited only by their creativity and the emerging technologies.

A. The Bottom Line: Saving Time and Money

Choosing the right tools to manage discovery may seem overwhelming, but if you have a preference for Google over Bing then you may appreciate the finer distinctions between some of the most popular tools available. Programs such as Concordance (a LexisNexis product) and Summation (recently acquired by AccessData) allow for multiple users to work within the same database at the same time. Consequently, paralegals, investigators, legal assistants and attorneys can effectively and cohesively work as a team to globally record their mental impressions, annotate documents (e.g., highlight, underline and circle), perform open document reviews, build complex relational searches, and save customized queries. The ability to easily perform numerous tasks globally decreases inefficiency and redundancy, therefore saving time and money. Moreover, the software automatically functions as a time keeper by logging individual users’ events, thus efficiency in time keeping is increased as is the ability to determine what is being done, and by whom. For example, if you want to search all notes and annotations made by Susan Rich, you can return a list of just those. If you want to return notes by all users, you can do that as well.

Once the right set of tools is acquired and a system is refined and implemented for your specific caseload, the cost of training significantly outweighs the cost associated with inefficiency and redundancy inherent in a traditional document review, particularly because many lawyers and their support staff are familiar with the underlying technology and programs’ functionality. For example, Concordance’s search logic and interface closely mimic those in Google and Windows respectively; therefore, new users face a relatively quick learning curve. Additionally, technical support is provided by many programs to answer specific questions when they arise.

B. Constitutional Consequences

Perhaps the greatest reason criminal defense lawyers should use litigation support software is to provide heightened constitutional protection to their clients. As technology becomes an increasing part of our daily lives (e.g., iPads, multiple email accounts, Facebook, Twitter, smart phones, etc.) cases involving electronic data are inevitably on the rise. For example, the prosecution of mortgage, wire and bank fraud cases often relies on obtaining relevant data from the computers of multiple defendants. The data from even one computer can produce a huge amount of discovery. The possibility of overlooking a key document or image could potentially give rise to major constitutional infringements. Utilizing the technology appropriately would decrease the likelihood of such oversights.

For example, imagine a scenario in which your office has a case going to trial in a few weeks and you need to find a document located on a co-defendants’ hard drive for use as a key exhibit. Using Concordance (one of many helpful programs) the team would be able to search and find the document in seconds, determine the location of the original image (for evidentiary purposes such as chain of custody and authenticity), determine if it has been reviewed previously and review any notes or annotations made by reviewers in the past. In short, these tools not only find the “needle in the haystack” they communicate who, if anyone, “dropped the ball” and exactly when and how the ball was dropped, invaluable information in the unfortunate event that liability becomes an issue (e.g., IAC claims). Without such tools, you, or your co-workers will spend countless hours clicking through images one by one, or worse sifting through hard copies to find the “needle in the haystack.” The Constitution cannot tolerate this type of inefficiency and many courts are recognizing that prosecutors and criminal defense lawyers need to catch up with the emerging technology.

C. Protection from Liability

In United States v. Suarez, the government failed to turn over text messages between an informant and FBI agents because they had been deleted due to the phones’ automatic retention policy and the respective server’s incapacity to store information. U.S. v. Suarez, No. 09-932, 2010 WL 4226524 (D.N.J. Oct. 21, 2010).[1] The defendant showed the text messages were Jenks material, not necessarily relevant or exculpatory.[2] Id. at 5. The court determined the government created a substantial prejudice in deleting the text messages because (1) the messages were within the government’s control, (2) the government could have produced the messages but did not, (3) the messages were relevant to claims and defenses, and (4) it was reasonably foreseeable that the messages would later be discoverable. Id. at 8. Even though the court did not find the government acted in bad faith, it sanctioned the government by giving the jury an adverse inference instruction, specifically telling the jury they could assume the deleted text messages would have helped the defendant even though there was circumstantial evidence that the text messages were not exculpatory. See Id. at 5 . The defendant was ultimately acquitted.

This case is helpful if criminal defense attorneys proactively implement a systematic approach to managing incoming discovery in all its forms, especially the elusive electronic form. Once criminal defense attorneys perfect this defensive game, they can play an offense, attacking their opponent on grounds of spoliation, a concept not exclusive to civil practitioners.

Examples from the Trenches

Imagine a hypothetical in which you receive a copy of a co-defendant’s hard drive from the government and somewhere, deep inside a folder that is located inside another folder that is located inside another folder there is a folder that has a relevant yet obscure title, thus eluding your previous key word searches. For the sake of argument, imagine the following two scenarios: (1) you find the folder and are unable to access it (i.e., you click on it and it will not open), or (2) you do not find the folder because the government has produced over 100,000 pages of discovery and given your limited time and resources, you did not do a sufficiently thorough review of the discovery.

If you happen to fall into category one and you do find the folder, you can file a specific motion to produce (taking into considerations your client’s needs). If the government cannot produce the folder because, for example, its contents were destroyed or located on a server that is now unavailable, you may be entitled to an adverse inference instruction, as Suarez nicely illustrates. Some legal scholars and judges have interpreted Suarez as concluding that an adverse inference instruction is not the only type of sanction appropriate for the government’s spoliation of evidence and that harsher sanctions would be reasonable in certain circumstances (comments made by Judge Herbert B. Dixon, Jr. (Superior Court of the District of Columbia) during a webinar hosted by the Federal Defender Office titled The ‘Ins’ and ‘Outs’ of Electronic Information in Criminal Investigations and Actions (March 10, 2011)).

If you fall into category two, and you never find the folder, you may find yourself up against an IAC claim if your client is sophisticated enough to determine that such a defense exists. And unfortunately if the contents of the folder were either (1) harmful to your client or (2) irrelevant, the liability may still exist. Leaving such a door open, even slightly, is simply not worth it. Even if the defendant does not succeed with an IAC claimed based on spoliation, internal policies and politics may control. Whether the folder is located may be the difference between losing your job and being promoted or getting a new client and losing an old one.

D. Alternative Uses

Not only will the use of litigation support software protect you from liability, it may unearth the brilliant technologist in you and your colleagues. One relatively novel use of litigation support programs is automated indexing. Searching a hard drive does not present the same types of problems and limitations as searching scanned documents. Presently, the government sends a vast majority of its discovery to defense counsel as scanned images. The scanned documents are text searchable by way of Optical Character Recognition technology (“OCR”). This technology is limited and often misreads text. For example, default searching logic often recognizes the letter “S” as a number “5” or the letter “O” as the number “0”. Relying on simple search logic to find key documents where text has been made searchable using OCR inevitably limits search results. Although programs such as Concordance have built in technologies capable of finding “fuzzy” text (words that are structurally similar to the word being searched), such technologies are far from perfect. Consequently, an index of documents may be necessary.

The indexing process can require hundreds of hours, depending on the size of the document set. With a program like Concordance, a user can extract and export all of the OCR text into an Excel sheet (or an SQL based program for large data sets). Once in Excel, the user can locate and remove all the spaces (” “) and/or other irrelevant noise that produced gibberish during the OCR process via a simple “find and replace” (or for the more technologically savvy, a relatively simple macro that you can get from a friend or find on the Internet). The user can then export the edited text back into Concordance into a new and visible field allowing you and your staff to gain a bird’s eye view of the discovery. This may sound technical, and does take a certain degree of skill, but the results are astounding. Although a user might not be able to determine exactly what each document is by looking at the truncated OCR text in each field, they can more easily determine where one type of document begins and ends because of patterns unique to different types of documents.

For example, the OCR produced from a Salt Lake City Police Report looks very different that of a Criminal History Report or a Memorandum of Interview. In the litigation support industry, the manual process of determining where one document begins and ends is known as unitization and if required by you or your office can be hugely time consuming and expensive. This method of automated indexing, (or automated unitization), has personally saved me thousands of hours that I would have otherwise spent creating an index to use throughout the life of a case. Furthermore, because tasks performed in Concordance are global, there is no need to perform the job again. All those participating on the case can view the results on their end.

E. Conclusion

The use of litigation support software by criminal defense attorneys is necessary in order to save a significant amount of time and money, protect clients’ constitutional rights, reduce personal and agency liability and promote user creativity.

_______________________________________________________________________________________

Susan is a Litigation Discovery Consultant for ILS. Before earning her law degree, Susan had over 10 years of experience as a legal professional. Her breadth of experience stems from her exposure to discovery in a variety of legal settings. Susan has identified and resolved discovery issues for private corporations subject to federal regulatory investigations, capital habeas claimants, white-collar defendants and a number of clients with complex civil litigation matters. Consequently, she is familiar with the practical and legal issues discovery presents to both the civil and criminal practitioner.

As a consultant, Susan assists clients with discovery strategies, particularly focusing on how to apply the principles underlying the rules of civil procedure in criminal defense cases in order to obtain ESI discovery from the government. Additionally, she focuses on identifying defenses generated by the unavailability, inaccessibility or destruction of ESI discovery.

Susan’s experience designing and building databases combined with her legal education allows her to provide specific and detailed solutions catered to each client’s case and data. Susan’s knowledge of the products and their underlying technology allows her to negotiate with opposing counsel to obtain information that might seem irrelevant to those focused on non-ESI related issues in preparation for, trial, sentencing, and the appeals process.

Susan earned her B.A. degree from Brigham Young University and her J.D. degree from the S.J. Quinney College of Law, The University of Utah.

[1] Although this is an unpublished case out of the district of New Jersey, it is relevant because it establishes reasonable precedent in a new area of the law.

[2] Because the text messages were deleted, there was no way to prove they were either relevant or exculpatory.

In re Fontainebleau Las Vegas Contract Litig., 2011 WL 65760 (S.D. Fla. Jan 7, 2011)

2011-01-25T14:59:00.001-08:00

By Diane Barry

The dangers of mixed use servers. In In re Fontainbleu Las Vegas Contract Litigation the matter concerned financing the construction of the Fontainebleau Resort and Casino in Las Vegas. The immediate dispute was over production of ESI : the Fontainebleau moved the court for an extension of the production deadline. Fontainebleau claimed that review of the ESI was moving very slowly, as the servers which housed the Fontainebleau’s ESI was shared space – they shared the servers with multiple other entities. It appears that security on the servers was sloppy – no allocation of separate space for separate entities. All of the documents were co-mingled All in all, they were having a terrible time teasing out their own documents; conducting a privilege review; and handing the results over to the other side. They couldn’t make the deadline. Their suggestion: they would conduct a full on review of the email server(s) and provide a privilege log. The other servers would be handed over wholesale, and they’d get a clawback of any privileged items the opps found.

The court simplified the matter for them: since the documents had been co-mingled on a server where everyone and his brother had access, there is no privilege to worry about. In addition, if servers are handed over to the opposition wholesale without any prior review, there won’t be any privileged items left to hand back on those either. It looked to the court like all privileges had been waived, and Fontainbleau could just produce the documents toute suite.

FN1. Fontainebleau did not explain in its motion to quash why the shared documents on the computer servers would still be privileged (assuming they were privileged in the first place) if they were stored together on servers presumably accessible by other entities. Fontainebleau represented in its motion that the servers "are owned by Fontainebleau Resorts, LLC (one of The FBR Entities) but [ ] contain documents belonging to various Fontainebleau and Turnberry Construction entities, including the Debtors" (DE# 93, at 2). Likewise, Fontainebleau did not explain in its motion why the entities would not lose privilege protection under a plan where each entity would receive "a full copy of each of the servers" (and presumably have unfettered access to all material, including information and privileged matter belonging to others).

Fontainbleau ignored the court’s order, and proceeded to produce as it proposed: wholesale production of the accounting and “documents” servers; email with a privilege log.

The court then held that Fontainbleau had waived any privileges as to the accounting and documents servers. Since the privilege log was provided as to the emails (albeit late) the court declined to rule at that time that privilege had been waived as to email. Despite it’s finding of privilege waiver, the court provided Fontainbleau with a limited protection of their disclosed privileged items: the court ordered the Term Lenders to notify Fontainebleau of any privileged materials it identified in its review, but stated plainly that the documents were fair game. Also, the court stated that the plaintiffs would not suffer adverse consequences “should they inadvertently omit privilege materials” from their court-ordered notification(s).

I find three things of note in this case.

First, sloppy information management practices at the client prior to the institution of litigation almost sank the document production effort before it began. Sharing servers without good security to segregate the servers into different areas for different users is sloppy work on the part of IT. Good client counseling prior to litigation about best practices could have assisted the litigation effort and saved what must have been a mountain of attorneys bills. The law firm spent time trying to tease out their own client’s documents ($$$); they spend time meeting and conferring with the opposition about the horrible situation ($$$) and they had to resort to law and motion to stall for more time ($$$). Counseling and some IT adjustments would have been much less expensive for the client than the additional litigation costs imposed by the IT practices.

Next, the party claiming a privilege bears the burden of proving the elements of the privilege, and when attacked, the burden of proving that it has taken adequate steps under the circumstances to protect the claimed privilege. The court in this case took a position similar to that of Chief Magistrate Grimm in Victor Stanley I – if there was any privilege remaining here, the defending party failed it’s burden to show the facts that would establish or protect it. If there was security on the servers to segregate areas; if there were other safeguards to prevent other groups from viewing privileged items; if there were mitigating circumstances, Fontainebleau failed to bring such facts to the attention of the court. Prove it or lose it.

Finally, Fontainebleau should have lost its privileges in their entirety. However, for reasons not apparent in the opinion, the Judge took pity on Fontainebleau. The court could have simply held that all privileges were waived (please produce all documents listed in your privilege log), as Fontainebleau failed to prove up sufficient facts to establish and protect the claimed privileges. The Judge hedged at the last minute, and gave them partial protection – an undeserved gift from the bench. How comfortable are you in relying on kindness from the bench?

Diane is Director – Discovery Strategy & Management at ILS

Why Plaintiffs Should e-Discover, What they Should be e-Discovering

2010-12-14T19:48:00.001-08:00

By Nick Brestoff

(This article was published in Advocate, the Journal of the Consumer Attorneys Associations for Southern California, Volume 37, No. 12 (December 2010) Copyright © 2010 Consumer Attorneys Association of Los Angeles.

In the fall of 2008, I tried a case before the Hon. Ann I. Jones. When I saw her at a recent conference, she didn’t remember me, which I expected, and I took no offense because she at least remembered the case.

But it’s what she said about e-discovery that I remember. I asked Her Honor if, because of budget cuts, she was seeing more criminal cases in her courtroom. She told me no, because she was currently sitting in Complex Civil. I had been there. Then you must be seeing a lot more Law & Motion regarding e-discovery disputes, I surmised. “No, not really,” she said. That shocked me. I asked why. She said she didn’t know, but that she suspected that the lawyers were agreeing not to engage in it, probably because of the expense.

This exchange led me to write this article. How could anyone, especially plaintiffs’ counsel, agree to not engage in e-discovery? We live in a world of electronically stored information (ESI). We are swimming in it. You use it every day, when you write documents and send e-mails. It is our present; and it is our future, too, isn’t it?

There are two primary characteristics of ESI: its volume, which is already immense, and the rate at which it is growing, which is exponential.

This much is obvious by now. Businesses generate mountains of data every day and it is clearly the case that their use of ESI is growing each year, and growing fast. But ESI is not paper. In fact, ESI is very different:

It comes in many forms, e.g., e-mails, voice-mail messages that appear as e-mails, and spreadsheets, to name only a few.
It is known by many file names, some of them well known, e.g., .doc, .wpd, .pdf., .jpg and .tif, and some of them not so well known, such as .docx, .pst., .nsf, .pif., and .gif.
It is stored in a wide variety of devices, such as hard drives in desktops and laptops (both in the office and at home), flash drives (including the backup flash drive you probably have), the digital memories in machines that photocopy and scan hard copy documents, and cell phones; it’s in “the cloud,” and so on.

So it is not hard to believe what the academics have been telling us: ESI is somewhere between 95% and 99% of all the information that we generate.

Is ESI a problem? No. It’s not a problem. It is a blessing. This particular innovation is doing for the world, and for litigation in particular, what Gutenberg did for the spread of knowledge with his invention of the printing press. The fact that ESI is now so much of all the information we create is a testament to the proposition that Electronically Stored Information – ESI – has been broadly accepted.

There are at least three reasons for this: (1) Personal computers have become almost ubiquitous: There are over a billion of them in the world today. (2) The price per unit of memory has “declined by an average of 32 percent per year.” (Source: Congressional Budget Office, “The Rule of Computer Technology in the Growth of Productivity,” Ch. III, Prices of Computers and Components (May 2002).) (3) The speed of processing data has gone way up.

What’s the bottom line? By storing information electronically, information is more accessible now than ever before.

You should like the fact that ESI is accessible, because that’s where you’ll find the facts that supports your cases, and because there have been both legal and technological advances permitting you to review the information in the defendants’ possession, custody or control. If data is stored electronically, you can use computer-based tools to access and search that data electronically. Count your blessings: Having to learn about and use ESI is a darn sight better than being told, “Of course, you can review those documents you requested; you can find them in, oh, I think it was something like 10,000 boxes. We put them in a number of conveniently located warehouses for you. Ready for those addresses?”

But the plaintiff’s bar appears to be ignoring ESI. In a recent article (Deutchman, L., “E-Discovery Sanctions: Not for Defendants Only,” Law Technology News (September 16, 2010)), the author wrote: “the plaintiff[] bar knows far, far less about e-discovery than does the defense bar.” Why? There are many reasons:

The defense bar has taken notice and educated itself about ESI, and they have been assisted by software vendors who saw that corporate America and its outside counsel could pay their bills. Why has the defense bar taken the initiative? In 2005, a jury awarded a single plaintiff in a sex discrimination case $9 million in compensatory damages and $20 million for punitive damages because the defendant spoliated potentially relevant evidence and the court decided to give the jury an “adverse inference instruction.” (Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13574, 2004 WL 1620866 (S.D.N.Y. July 20, 2004)). And in that same year, a jury awarded $600 million in compensatory damages and $850 million in punitive damages in a securities fraud case, largely because the defendants failed to properly handle e-discovery and also went to trial facing an adverse inference instruction. (See Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla.Cir.Ct. Mar. 1, 2005) (subsequently reversed on other grounds).)
Plaintiff attorneys generally believe they have little digital evidence to produce, and that the process is expensive. As a result, they have failed to learn how to identify, collect, preserve, and produce digital evidence; but more than that, they have failed to learn how to ask for it or how to analyze the data when it comes in.

Is it too expensive? Is ESI overwhelming? Should you agree with defense counsel that neither side will request ESI from the other?

No. “Electronic evidence is frequently cheaper and easier to produce than paper evidence because it can be searched automatically, key words can be run for privilege checks, and the production can be made in electronic form obviating the need for mass photocopying.” Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. May 13, 2003). It is a mistake to turn data into the near-paper equivalents of image files like TIFFs and PDFs. Without further manipulation, such files are not searchable and, to make matters worse, the costs are more than three times greater than with native files. (See Diane E. Barry, Esq., Madison Spach, Jr., Esq., and Hon. James L. Smith (J., Ret., JAMS ADR), Keeping Up with E-Discovery, National Business Institute, at 4 (September 2010).

To reiterate: ESI is a blessing. Instead of being overwhelmed by tens of thousands of pages (in thousands of boxes of documents), computer-based technologies make it possible to search through much, much more than that. And quickly too. Not long ago, our favorite search engine ingested 60,000 documents, consisting of 351,000 pages (which is approximately five gigabytes), in about 45 minutes. After it “clustered” the documents automatically (with “concept search,” clustering may precede key word search), we were searching and finding relevant documents in about an hour.

The cost? Well, twice as much, say ten gigabytes (about 750,000 pages) of basic Microsoft Office type ESI would cost between $6,000 and $10,000. Remember, the costs a plaintiff faces after receiving a defendant’s production are much lower, because the processing and filtering have already been done, and a plaintiff need only pay for concept searching, hosting, and review. Dealing with 100 gigabytes would scale up linearly, because the charges are per gigabyte, to about $60,000; but how many cases involve seven and a half million pages?

In fact, now you can see that ESI is a real time-saver. You could get your arms around 750,000 pages in a year if you reviewed about 2,000 pages every single day without stopping. But what is the value of that time?

This is why plaintiffs’ counsel need not feel overwhelmed when they are on the receiving end of an electronic document production. ESI is a Treasure Chest. The keys to open it do exist, and they have come way down in price.

So, by learning about the tools and how to use them; with some good old-fashioned persistence; and with a healthy dose of curiosity, you can use ESI to win your case. When defense counsel makes or agrees with a suggestion that both sides not request ESI from each other, you are right to be nervous. ESI can be expensive, depending on the volume and type, but you must know that any such offer from the defense is self-serving. If you agree to limit yourself to documents kept as paper, you are acting like the drunk who is looking for his car keys only by searching under the streetlight. If your vision is limited to less than 5% of the available information, the defense will happily lead you to miss the other 95%.

ESI offers too much to ignore. Indeed, there are many reasons to focus on it.

Let’s skip the problem of learning how to ask for e-discovery. (Hint: Always ask for native files with metadata intact.) Let’s start with the idea of finding the evidence that supports your client’s case when the data arrives. That’s a key part of your job, to play “Sherlock Holmes.” Can you do this, even though you may be presented with ten gigabytes of data? Yes, you can.

In fact, you can find that “smoking gun” e-mail, an e-mail which turns a defense contention into a lie. A jury will devour such evidence because it was made so contemporaneously with the conduct in question that it takes on the mantle of being the concrete truth. For a plaintiff, such an e-mail has the potential of destroying the credibility of a key defense witness. Any piece of evidence that can do that is indeed a powerful weapon. You want this.

In fact, the entire process can be a friend to a plaintiff’s counsel who understands this new world and is persistent. Take, for example, the case of Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4^th 967. In this “lemon law” case about a Bentley with an oil-wax stink, the appellate court held that the trial court abused its discretion when it denied plaintiff’s request for terminating sanctions against Bentley. Imagine that — an appellate court ordering the imposition of terminating sanctions. It happened, and the Supreme Court denied review.

The lesson is in why it happened. In Doppes, defendant Bentley violated four discovery orders or discovery referee determinations prior to trial, such that the trial court was persuaded to give an adverse inference instruction. But then, during trial, plaintiff’s counsel discovered impeaching e-mails and the deletion of potentially relevant e-mails, so that Bentley’s discovery violations was found to have been worse than had been previously known. Still, the trial court would not grant terminating sanctions and instead gave another adverse inference instruction. On appeal (after jury verdicts in favor of plaintiff), the appellate court affirmed the verdicts on two causes of action, and then ordered terminating sanctions and a default judgment on a cause of action which the jury had rejected — for fraud. Not only that, the appellate court ordered an increase in the amount of attorney fees the trial court had awarded to plaintiff for having to make the successful discovery motions (from $344,600 to $402,187), with the potential for more on remand.

But take heed: Sanctions can be visited upon plaintiffs, too, and that is why it is critical for you to know when your identification, collection, and preservation duties arise, so that you are not caught spoliating potentially relevant evidence.

As you may know, there may be no statutory obligation for parties to preserve evidence, but the law is clear: parties must preserve all potentially relevant evidence when the facts and circumstances make it reasonable to expect that a dispute will ensue. (See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4^th 1.) And while there is no separate tort for destroying (spoliating) evidence in California, our discovery statutes authorize a range of penalties for “misuse of the discovery process.” (Id. at 12.)

So, don’t be surprised to learn that your preservation obligation attaches to you before a complaint is filed. It attaches to you because you are an attorney and you know when your client has authorized you to write and file a complaint. Once a client engages plaintiffs’ with the intention of moving forward with pre-litigation negotiations or simply filing the complaint, the preservation obligation attaches. Yes, a plaintiff has an obligation to preserve ESI, and your duty is to explain this obligation to your client; to find out about your client’s IT environment and any document destruction policies and practices; to put a “hold” or “suspension” on these policies and/or practices as to the relevant custodians, subject matter, and time frames; and to do so in writing, and then to monitor and update the “hold” as the case develops.

Do you want defense counsel to ask you for ESI when you did not take reasonable steps to preserve it? Do you want to be subject to sanctions for spoliation? No. But when you follow through on your obligations, you will want to hold the other side accountable. Defense counsel has the same obligations and they can also attach before they receive the complaint. The general rule is this: the preservation duty attaches when litigation can be reasonably anticipated.

So plaintiff’s counsel should never ignore ESI: it’s where to find most of the potentially relevant evidence, whether the case is large or small. Here are three examples: First, suppose you have a car crash. The injuries might be large or small. Either way, don’t you want to know which one of the drivers was “texting” just before the crash? Or suppose you have train wreck, like the tragic and fatal crash when the Metrolink and Amtrak trains collided in Chatsworth. The fact that the engineer was texting just before the crash was critical evidence, wasn’t it? Or suppose you are plaintiff’s counsel in a “slip and fall.” The ESI is in the surveillance tapes, the e-mail messages the plaintiff or any witnesses sent to friends or family, the medical ESI, and the photos or statements posted on social networking websites.

It is for this reason that ESI cannot be ignored. How can you practice competently (and comply with Rule 3-110 of the Rules of Professional Conduct) if you ignore ESI, where such a high percentage of potentially relevant evidence may reside?

Are we consigned to be swamped by this tsunami of ESI? No. Our technologies may have succeeded in making ESI ubiquitous, but it is also true that our technologies make it possible for us to search it. We can find those needles in this enormous electronic haystack. We adjusted when published opinions were turned into electronic databases, and we can adjust to ESI, too.

But we must learn to use new tools. In the mid-1970s we learned to search a case law database with key words, and we are used to doing this. But a dataset consisting of e-mails and spreadsheets is quite different; it is unstructured and contains “metadata.” New tools are needed – and they exist.

But, as I said, ESI is different. Let me dwell on this point for a moment, because we are fooling ourselves into thinking that key words will do the trick. Not so. Let me test you. Here’s the proposition: Key words using Boolean connectors will find only about 25% of the relevant documents. True or false?

True! One of the founders of the “information retrieval” field, M. E. Maron (now professor emeritus, UC Berkeley) reported as long ago as 1985 that attorneys were over-estimating the efficacy of their searches. The attorneys thought they were identifying 75% of the relevant documents, but they were wrong: they were finding only about 20%. More recently, studies show that key word searches are, even today, only a little more successful. Tomlinson and others reported in 2008 that Boolean searches identified only 22% of the relevant documents, while Oard and others reported in 2009 that Boolean searches pinned only 24% of the relevant documents. (These reports come from the Legal Track of the Text Retrieval Conference (TREC), which is administered by the U.S. National Institute of Standards and Technology.)

Is there an answer? Yes. First, recognize that ESI is data. Agree with defense counsel on the ways they want to receive your data (if they want print-outs, say yes, realizing that as such, paper is not searchable electronically), but seek ESI from the other side in its native form, with metadata intact. When you receive it (and you will likely receive gigabytes of it), treat it as data. “Hash” the data (which means to give each “page” a unique number), and process out the exact duplicates (“de-duplication”) and system files. Then use software tools that go beyond key words and the Boolean search techniques, e.g., “concept search.” Then ask the concept search engine for “more like these,” and iterate the process. Next, promote the “clustered,” potentially relevant documents to a database, and then use key words and Boolean connectors. Cull the data for eyes-on review down to the point where it is manageable. This is the way to reduce the cost of e-discovery, always remembering that the goal is to find admissible evidence that you can use in deposition, mediation, or trial.

But to persuade you that choosing to grapple with ESI is worthwhile, let me approach the issue from four different perspectives. In the first scenario, a plaintiff fails to preserve ESI and suffers the consequences. In the second scenario, a plaintiff mishandles requests for ESI and the defendants happily under-produce the documents that the plaintiffs were seeking. In the third scenario, I present three instances where the plaintiffs discover that the defendants have failed to preserve potentially relevant documents, and they make the most of it. In the final scenario, I describe how plaintiffs used “concept search” to find the “smoking guns.”

Scenario 1. A Plaintiff fails to preserve evidence. In Medcorp, Inc. v. Pinpoint Technologies, Inc., 2010 WL 2500301 (D.Colo. June 15, 2010), the plaintiff intentionally destroyed 43 hard drives which contained information relevant to the dispute by failing to “stop the presses” on their ordinary recycling schedule, but not with a motive to destroy evidence because at least some of the information that was lost was re-produced. Although finding that a terminating sanction would be too severe, the district court was tough nevertheless, and decided to award reasonable attorney fees and costs in connection with the motions to compel and/or for sanctions ($89,365.88), and to issue an “adverse inference” instruction, to the effect that the jury could infer from the evidence that the lost evidence was favorable to the defendant. Ouch.

Scenario 2. Defense counsel snookers a plaintiff. In a different case, the plaintiff requested documents from the hard drives of 26 employees. The defendants used de-duplication to narrow the documents to be produced down from 423,835 to 129,000, and then used search terms to narrow the actual production down to 4,000 documents. The plaintiff objected, and wanted more, but the magistrate dismissed the plaintiff’s objections, stating “To the extent Plaintiff contests the adequacy of the search terms, it has not set forth an alternative search methodology; moreover, no specific challenge to the search terms has been brought and briefed before the Court.” (In re CV Therapeutics, Inc. Sec. Litig., 2006 WL 2458720 (N.D.Cal. Aug. 22, 2006).)

Scenario 3. Plaintiffs uncover a defendant’s spoliation. Laura Zubulake (pronounced “Zoo-boo-lake”) was a highly compensated executive who worked for UBS Warburg. In April of 2001, UBS Warburg knew that Zubulake was contemplating a sex discrimination lawsuit. She served an EEOC complaint in August. She filed her lawsuit in February of 2002. UBS Warburg failed to begin preserving documents until August of 2001, after receiving the EEOC complaint, but then botched the process after that, initially giving only oral instructions to key employees telling them not to delete or destroy materials that might be potentially relevant, and failing to mention that the preservation efforts applied to ESI as well as to paper documents. Then, when a follow-up memorandum was issued, it failed to mention back-up tapes. To make a longer story shorter, Zubulake discovered that key employees had deleted relevant e-mails, and that e-mails on the back-up tapes were lost because the tapes were overwritten. The court not only imposed monetary sanctions but finally agreed to issue an adverse inference instruction, which indicated that the jury could infer that the lost evidence could have either been beneficial to Zubulake or harmful to UBS Warburg. (See Zubulake v. UBS Warburg, 229 F.R.D. 422, 424 (S.D.N.Y. 2004) (the fifth in a series of seminal pre-trial e-discovery decisions by the Hon. Shira Scheindlin). The result: in a single-plaintiff sex discrimination case, the jury awarded $9 million in compensatory damages and $20 million in punitive damages.

In the second case, Magana v. Hyundai Motor Am., 2009 WL 4070952 (Wash. Nov. 25, 2009), the plaintiffs won a terminating sanction. In response to discovery requests, Hyundai’s in-house counsel had searched for responsive documents, but only in its own legal department. In the end, the trial court found that (1) the parties had not agreed to limit discovery in this way; (2) the defendant falsely responded to plaintiff’s request for production of documents and interrogatories; (3) the plaintiff was substantially prejudiced in preparing for trial; and (4) the potentially relevant evidence was lost forever. The trial court considered lesser sanctions, but concluded that the only just remedy was the entry of a default judgment, for $8 million. The appellate court reversed, but the Washington Supreme Court reinstated the trial court’s ruling and, in addition, awarded attorney fees to the plaintiff pertaining to both the trial and appellate proceedings.

Is there a similar case in California? Yes. In OZ Optics Limited v. Hakimoglu (2009) 2009 Cal.App. LEXIS 2952, an executive ran a “scrubbing” program on a company laptop prior to handing it over, which a forensic examiner was able to detect. A $90,000 sanction was ordered. The trial court refused to give a terminating sanction but only because there was no evidence that a claim or defense had been lost.

Scenario 4. Plaintiffs find the smoking e-mails. In a stock option back-dating case, a concept search pointed to documents whose common denominator (pattern) was the phrase “Let it roll.” Now, technology plus a little curiosity is a powerful combination. Why would key words associated with “back-dating” surface a cluster of documents related to “Let it roll”? Remembering that concept search is designed to seek out hidden meanings, the consultants involved in the case called the “Let it roll” group to the attention of the litigators. Sure enough, when these documents were reviewed, this phrase turned out to be the “go” signal the executives were using to authorize the back-dating. Unless a power key word searcher made a lucky guess, the “Let it roll” documents – the key needles in a very large haystack – would have gone undetected. As you might expect, the case (which is confidential) settled.

Most of these e-discovery decisions have been made in federal court cases over the past five to seven years, but the plaintiffs’ bar must not ignore them, despite their strong preference to litigate in state court. After all, California’s e-discovery statutory changes, effective on June 29, 2009, were modeled on the changes to the Federal Rules of Civil Procedure, which became effective on December 1, 2006. The federal cases will be influential.

But in California, e-discovery issues will arise more quickly than in federal court. You have to start thinking about e-discovery when you are writing the complaint because Plaintiffs’ counsel must be prepared to discuss “any” issues relating to the discovery of ESI, pursuant to Rule 3.724(8) and (9) of the California Rules of Court (effective August 14, 2009) at least 30 days before the Case Management Conference. This deadline means that you must first address the issues with your client within the first 30 to 60 days after the complaint is filed, if not sooner. And if you (or the other side) come to the “meet and confer” process or CMC unprepared, and so fail to participate in good faith, then you (or the other side) is engaging in a discovery abuse. (Code of Civil Procedure section 2023.010(i); see Liberty Mutual Fire Ins. v. LCL Administrators, 163 Cal.App.4^th 1093, 1104 (2008) (repeatedly ignoring “meet and confer” letters is a separate ground for discovery sanctions).)

The lesson is to come prepared with a list of custodians (yours and theirs); the search terms you wish to propose; the time frames you care about; and the format(s) you want the data in when it is produced.

What’s the bottom line? ESI is here. Compliance with the rules pertaining to ESI is mandatory. Show the defendants you know what ESI is about. And make it work to your advantage.

# # #

After graduating with a B.S. in engineering systems from the University of California at Los Angeles (U.C.L.A.), Nick Brestoff earned an M.S. in environmental engineering science from the California Institute of Technology (Caltech) and graduated from the Gould School of Law at the University of Southern California (U.S.C.). During his litigation career, Mr. Brestoff litigated business tort, employment, environmental, and other civil disputes in state and federal court, winning 8 figures in one federal court case and succeeding in his only trip to the California Supreme Court. He is currently the Western Regional Director, Discovery Strategy & Management, of International Litigation Services (www.ilsTeam.com). Mr. Brestoff’s email address is nbrestoff@ilsTeam.com.

GIGO and MEGO in e-Discovery

2010-12-14T19:38:00.001-08:00

Posted by Douglas Forrest on Dec 13, 2010 | 0 comments

GIGO – Garbage In, Garbage Out – is a seminal axiom of all data processing which applies with full force in the realm of e-discovery. But, in e-discovery, there is another wrinkle, i.e., valid data that that washes out prematurely (or, beyond the scope of this entry, is never collected in the first place). Yes, I’m talking about what can happen before data is fed into programs such as eCapture or Clearwell, viz., forensics and handling in forensic tools such as EnCase.

Now, before you claim technical incapacity or that the very topic induces MEGO – My Eyes Glaze Over – hear me out .As to MEGO, just snap out of it; this could be important: what you don’t know can hurt you. And, with respect to forensic technical expertise (or the lack thereof), passing the EnCE exam is not a prerequisite to gaining valuable insights into current issues in the technical forensic community, an understanding which may stand you in very good stead someday.

It is In furtherance of gaining such insights and understanding that I recommend a few blogs produced by true stalwarts of the forensic community whom I know from my past tenure at Guidance Software.

Geoff Black, formerly a very much hands-on Regional Manger with Guidance’s Professional Services Division and now Director, High Tech Investigations, at a Fortune 100 company, blogs at geoffblack.com. One recent post addressed new developments in matching digital photos to the specific digital camera that took them (think matching a bullet to the gun that fired it).

Jon Stewart, formerly Director of Development at Guidance , the founder of Lightbox Technologies, Inc and a programmer’s programmer, blogs both at Lightbox and at codeslack.blogspot.com. Jon has addressed more squirrelly forensic data anomalies than there are reruns on TBS.

Lance Mueller, formerly Senior Director IT & Corporate Security at Guidance and now a Computer Forensic and Security Consultant as well as a Senior Instructor at the US State Department, publishes a digital forensic blog at forensickb.com, where a recent post presented a decision tree for forensic hard drive imaging with volatile data collection.

Now, while much of the discussion at these blogs is either EnCase-specific, highly technical, or both, even a non-techie reading them can gain a new appreciation of the complexities and danger zones which can lurk behind blanket representations of forensic services.

A Strategy to Sample All the ESI You Need

2010-12-07T08:12:00.001-08:00

By Nick Brestoff, M.S., J.D.

I was re-reading the EDRM section on “validation of results” when it hit me. Most of us have been so busy mining the data from the mountain of it that we just received that we have been missing the other mountain of data available to us, the mountain we didn’t ask for. You know the adage: if you don’t ask; you don’t get. So I’m talking about the ESI we didn’t ask for and didn’t get.

I had been reading the last paragraph of the EDRM Search Guide, Section 9.5. You know the one: “Sampling and Quality Control Methodology for Searches.” (See http://edrm.net/resources/guides/edrm-search-guide/validation-of-results.)

“Sampling.” There’s a word that most attorneys don’t grasp; that is, unless they had a statistics class (and remember some of it) or pay close attention to the results of political polls, when the sample size is usually about 900 to 1,200 randomly selected individuals. Amazingly enough, poll results seem to be pretty good estimates for whole counties, states, or the entire nation. The size of the sample matters, but the size of the population doesn’t. (I’ll skip the math.)

The word “sample” is there in the rules. It was added when the Federal Rules of Civil Procedure were amended to provide for the discovery of electronically stored information (ESI). It shows up in the rules governing requests to produce documents, Rule 34(a)(1): “A party may … request … to inspect, copy, test, or sample … (A) … electronically stored information ….” In the case law preceding this amendment to Rule 34, sampling was used in the context of statistical sampling backup tapes to see if they contained potentially relevant information. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 324 (S.D.N.Y. 2003).

Of course, such sampling must be within the scope of Rule 26(b), and that means that the ESI can be “any nonprivileged matter that is relevant to any party’s claim or defense …,” and “need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” (Italics added.)

So, the rules allow us to use sampling on any ESI that “appears reasonably calculated to lead to the discovery of admissible evidence.” So what? You can’t use sampling on the data you didn’t receive. What light bulb went on?

First, back to the clue. It was the third and last paragraph of Section 9.5 of the Search Guide. It reads, in part: “In general, a sampling effort takes into consideration broad knowledge of the population, and [devises] an unbiased selection [of the sample]. In most cases, the party performing the sample has some knowledge of the population and there is one party with that knowledge. In contrast, most litigations where there is an adversarial relationship between a Requesting Party and a Producing Party, and since only one party has access to the underlying population of documents, agreeing on a sampling strategy is hard. An effective methodology is one that would require no knowledge of the data, but is still able to apply random selection process central to the effectiveness of sampling.” (Italics added.)

Ah ha. “Adversarial relationship.” “Sampling strategy.” Several points hit me at almost the same time:

· the frank recognition of the adversarial relationship;

· when you’re on the side of the Producing Party, you’re the only one with access to the ESI; and

· a sampling strategy is in play, notwithstanding the Sedona Cooperation Proclamation (http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/proclamation.pdf).

When you’re on the side of the Requesting and (eventually) Receiving Party, of course, you’re very busy. You’re likely to be immediately swimming in the ESI you just received. This data has been produced, sans privileged documents, and the task ahead is to search it for documents that support either a claim or a defense. The act of swimming in that ocean of data takes concentration. But that focus may also lead to tunnel vision.

I asked myself to remember what goes on when you’re on the side of the Producing Party. What have you been through when you’re wearing that hat? The answer is that you’ve been through a culling process that stripped out, among other things, exact duplicates (de-duping), system files (de-NISTing), and documents covered by the attorney-client and work product privileges.

But you and others on the e-discovery team may have also created folders with data that was “probably” irrelevant or “not responsive,” such as spam e-mails with Viagra ads. For quality control purposes, sampling may have been done, so that an expert could show that both the process and the sampling protocols were reasonable.

In the end, some judgment had to be exercised to produce the nonprivileged and relevant matter. But that also means that the “probably irrelevant or nonresponsive” data was not produced. I wondered about “probably?”

And in whose eyes? Does a Requesting Party ever seek to learn the sampling strategy used by the Producing Party? What about the sampling parameters? What if the sampling protocol is loosey-goosey? What if the criterion for sampling by the Producing Party is a confidence level of only 90%, with an error factor of 10%? What if documents were misclassified as not relevant or not responsive when in fact they were relevant or documents which might lead to the discovery of admissible evidence? Wouldn’t you want to know?

Was the Producing Party’s sampling process transparent in any way? If this issue had been raised during the Rule 26(f) “meetings and conferences,” yes; but thinking back on that last paragraph from the EDRM Search Guide, I realized that Requesting Parties almost never ask the Producing Parties to disclose their processes, including the software they’ve sued or their sampling protocols.

These considerations led me to think of propounding a second wave of requests, immediately after receiving documents from the initial request. The second wave would ask the Producing Party to exclude the exact duplicates, the system files, and the documents covered by the attorney-client or work product privileges, but then to produce all of the other ESI (in native format) that was collected from the appropriate custodians, during the appropriate timeframes, and regarding the stated issues in the case, but which was not previously produced.

This additional step might involve a second mountain of data, but then you then have control of it, and you can search it using your own statistical protocols. In other words, you might treat this data as if it consisted of backup tapes. Most of the data will prove to be not relevant. You could search all of it. But if you sample it first, using a confidence level of 99%, with a 1% error factor, you may find nothing; if so, then perhaps there is nothing to find.

But then again, your sampling may turn something up, and then you’ll want to search the “second mountain” more thoroughly. Perhaps in the data that you didn’t receive in the first place you will find the gold that you seek.

Thus, it may be vital to realize that somebody on the other side of the case decided that some amount of ESI was not relevant or not responsive, and so did not produce it. Here are the three easy steps: (1) during the Rule 26(f) process, ask the other side to disclose its processes and statistical sampling protocols; (2) after receiving data from the Producing Party, ask for the ESI that was not produced (not all of it; exclude the duplicates, the system files and the privileged data), and then (3) use your own sampling protocols on that data when you get it.

It takes curiosity and persistence to operate effectively in this new world of e-discovery. And that includes remembering to ask for the ESI you didn’t get.

# # #

Nick Brestoff, M.S., J.D. is the Western Regional Director for Discovery Strategy & Management at International Litigation Services (www.ilsTeam.com), based in Los Angeles. E-mail: nbrestoff@ilsTeam.com. He gratefully acknowledges comments on the draft by e-discovery attorney Helen Marsh.

Client Waives AC Privilege via Emails, Chats & Blogs … Oh My!

2010-11-22T17:39:00.001-08:00

by Nick Brestoff, M.S., J.D.

How ironic. You’d think that attorneys at Electronic Frontier Foundation (“EFF”) would draw the line at letting a client talk about her conversations with her counsel to the point where the attorney-client privilege was held to have been waived.

But in Lenz v. Universal Music Group, No. 07-03787-JF (N.D.Cal. Oct. 22, 2010), that’s what happened. Plaintiff Stephanie Lenz, represented by attorneys at EFF, had sued Universal Music Group (UMG), alleging that UMG had harmed her First Amendment free speech rights when UMG issued a notice to YouTube demanding that it “take down” a 29 second video of Lenz’s toddler dancing to Prince’s “Let’s Go Crazy.”

While the lawsuit was pending, Lenz used e-mails, Gmail Chat, and a personal blog to repeatedly discuss her conversations with her attorney about the case. For example, she said that the lawsuit was an opportunity for EFF to “get their teeth into UMG” for sending takedown notices. As a result, U.S. Magistrate Judge Patricia Trumbull granted UMG’s motion to compel further discovery regarding Lenz’s motives for bringing the action.

Then, in her chats, she revealed legal strategies, including EFF’s plan that it was using her case to clarify a ruling in a different case. Judge Trumbull granted UMG’s motion for further discovery on that subject, too.

Finally, in her blog, Lenz spoke of her conversations with counsel pertaining to certain specific factual allegations. You know what happened. The court held that she had voluntarily waived her privilege in this regard as well.

The lesson here: All clients need a lecture about using e-mails, chats, blogs, and any other form of social media to talk about confidential attorney-client communications. As in, “Don’t.” As this case demonstrates, even the EFF now knows that, in litigation, too much freedom can be a dangerous thing.

e-Discovery: Proportionality, Technology and Practice Standardization

2010-11-04T13:32:00.001-07:00

Posted by Douglas Forrest on Nov 4, 2010

Principal 6 of the just released Sedona Conference Commentary on Proportionality in
Electronic Discovery provides that:

Technologies to reduce cost and burden should be considered in the
proportionality analysis

While most of the provided commentary (parties should meet and confer, etc.) will be familiar to e-discovery adepts, there is some that is more novel (clue: no supporting footnotes or citations), viz.,

Parties and law firms that are involved in a significant amount of electronic discovery may choose a standard tool that meets their overall needs. The fact that the standard tool is not the best fit for an individual case should not be held against the firm or the party unless it is conspicuously inadequate for the case, as might happen where the volume of information is unusually high. Parties and law firms may have to consider other tools for cases that exceed the capacity of the standard tool. (Italics added.)

A few thoughts:

Except in those still relatively uncommon instances where parties are hosting review platforms themselves, the standard tools chosen by parties that would be relevant here would seem to be those used for identification, preservation and collection. However, the only specific caveats raised relate to the capacity to handle high volumes, which speaks almost exclusively to post-collection processing and review platforms.

The statement that the choice of a standard tool which is not the best fit for a particular case “should not be held against the firm or the party unless it is conspicuously inadequate for the case, as might happen where the volume of information is unusually high” is no safe harbor, but a standard of conspicuous inadequacy could still be rather useful as a bulwark in some cases.

The language could also assist law firms and general counsel offices in making a case not only for selecting and deploying the right standard tools but also, by arguably giving some measure of protection against technological obsolescence, doing so sooner rather than later.

Of course, what is a rule without exceptions? In addition to the capacity caveats, the commentary ends on this note:

While technology may create efficiencies and cost savings, it is not a panacea and there may be circumstances where the costs of technological tools outweigh the benefits of their use.

E-Discovery Search: The Truth, the Statistical Truth, and Nothing But the Statistical Truth

2010-10-10T08:35:00.000-07:00

Posted by Nick Brestoff on Sep 17, 2010 |

By

Nick Brestoff, M.S., J.D.

First published in the ABA E-Discovery & Digital Evidence Journal, Vol. 1, Issue 4 (Autumn 2010)

This article is a call to revisit Rule 26(g)(1) of the Federal Rules of Civil Procedure, which requires attorneys to certify “to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry” that disclosures are “complete and correct.”[1] Given the exponentially growing mountain of electronically stored information (ESI), and the incompleteness and statistical nature of search technologies, which this article will explain, no attorney can honestly so “certify.” One day, this gap, a loophole between the law of yesterday and the technology of today, will cause a monumental waste of judicial, attorney, and client resources.

Most of us know the meaning of a “loophole.” These days, when one seeks a definition, or perhaps an example, we look online and, more often than not, we turn to Wikipedia. According to Wikipedia, “[a] loophole is a weakness or exception that allows a system, such as a law or security, to be circumvented or otherwise avoided. Loopholes are searched for and used strategically in a variety of circumstances, including taxes, elections, politics, the criminal justice system, or in breaches of security.”[2]

Wikipedia mentions the “criminal justice system.” But to this entry we must add our system of “civil justice,” and, in particular, the giant middle of every lawsuit, discovery. As most attorneys are now aware, what used to be thought of as “discovery” is now dominated by e-discovery.

But e-discovery is a hybrid, a confluence of slowly changing laws and rules, on the one hand, and rapidly changing computer-based technologies, on the other. In this dynamic context, which besets every system of justice in the world, loopholes may be expected. Here we explore a rather large disconnect (or loophole) in the U.S. system of justice which comes as a result of the new complexities of e-discovery.

Loopholes

Loopholes can be large or small. In 2005, for example, Wal-Mart proposed a large store in Calvert County, Maryland. Because Calvert County restricted the size of a retail store to 75,000 square feet, Wal-Mart’s executives and attorneys proposed building two separate smaller stores, which, technically speaking, would not have violated the restriction. The plan was controversial, and Wal-Mart later withdrew it.[3] Until Wal-Mart made the proposal, however, this legal loophole went undetected.

One further example will serve to demonstrate that when loopholes are exploited, money – big money — is usually at stake. Ford imports a vehicle called Transit Connect from Turkey, but pieces of its interior are shredded when they arrive in Baltimore to circumvent the 1963 Chicken Tax, which imposes a 25% tariff on imported light trucks. Ford avoids this 25% tariff on its Transit Connects because it does not import these vehicles as light trucks; instead, they are imported as passenger vehicles with rear windows, rear seats and rear seatbelts, and are immediately converted into light trucks when they arrive, by replacing the rear windows with metal panels and by removing the rear seats. This change costs Ford hundreds of dollars, but it saves thousands in taxes.[4]

In the context of e-discovery, lawyers have attempted to exploit what they thought were loopholes right from the start. Examples abound. In one case, for example, when the format for producing ESI was not specified and emails (and only emails) were requested, they were produced, but they were “divorced” from their attachments, which were not produced.[5] In another case, a producing party converted searchable documents into nonsearchable TIFF files before producing the ESI.[6]

These gambits revealed certain weaknesses in the system, and some of them have been addressed. Now, for example, the federal rules provide that when a party is seeking documents from an opposing party, or from a third party pursuant to a subpoena, the requesting party may specify the form or forms of the documents when they are produced.[7] California’s e-discovery statutes also provide that the requesting party may specify the “form or forms in which each type of [ESI] is to be produced,” but, like the federal rules, the requesting party has only an opportunity to specify the forms once.[8]

Even though its growth-rate is prodigious, the hallmark of e-discovery is the immense volume of ESI that must be addressed. In 2003, researchers at UC Berkeley published an update to their study, How Much Information? At that point in time (and now hopelessly outdated), they explained that each year almost 800 megabytes of recorded information was produced per person, and that 92% of that information was stored on computers or a computer-based storage system.[9] Eight hundred megabytes is enough to fill a set of books stacked 30 feet high. Today, if each person generated only 25% more information than in 2003, or 1,000 megabytes, then each person would generate a gigabyte of data per year, and that amount is roughly equivalent to 75,000 pages, if printed.[10] It is easy to imagine that today we generate much more than that. Indeed, it is often said that 98% or 99% of all the information generated today, by everyone in the world, is generated as ESI. Why? Because today the digital universe includes not only servers, desktops, laptops, cell phones, hard drives, flash drives, and photocopy/fax machines,[11] the digital universe includes data from TV and radio transmissions, telephone calls received as emails, surveillance cameras, datacenters supporting “cloud computing,” and, of course, social networks.[12]

So, in lawsuits, parties and attorneys must often deal not just with gigabytes of data, but with several terabytes of data, and a single terabyte is roughly equivalent to 75 million pages, if printed. Even if a requesting party asks for readily accessible data, meaning data in native format with metadata intact, there is still the problem of how to search through a much, much bigger haystack than lawyers ever faced when, e.g., 10,000 boxes of documents were produced.

Key Words and Boolean Searches

Now, how can anyone get their arms around this much data? They can’t. The volume of data today is far greater than those times when parties attempted to hide the needle in the haystack by producing truckloads, or worse, warehouses full of boxes stuffed with papers. E-discovery expertise is partly the domain of an information technologist and partly the domain of lawyers. The technologist’s approach is to cull the data by removing exact duplicates (de-duping) and system files. Culling will certainly reduce the size of the data set. Now the lawyer’s task is to query that data set with key words and “field” terms, just as they did when searching opinion databases for applicable case law. Because they are familiar with key words, the receiving attorneys include key words describing the subject matter of the dispute and the names of the key players and employees who had “any involvement with the issues raised in the litigation or anticipated litigation.”[13] An oft-used field term is a date or a range of dates.

Indeed, in the context of online legal research, teams of lawyers and other law firm denizens have become “power users” of key words and field terms. It was not always so. Fifty years ago, lawyers relied on their memories and library tables populated with books. Their search technique was non-linear and depended on a more personal skillset. But once the published cases were uploaded and computers could be used to hunt through databases, key words, date ranges, and Boolean connectors (e.g., AND, OR, NOT, term X “within 7 of” term Y, etc.) were deployed. Lawyers have been using this technique for over 35 years.[14]

But now the scope of the data is vastly increased and the problem is different. The problem is different because we are not querying databases of published opinions in which courts use familiar legal terms. In the e-discovery context, we are working within the context of the law, but we are not looking for it. We are trying to find the facts, and we are trying to find them in a mountain of data that is not only enormous, it is contained in numerous places. In this endeavor, opposite sides have different goals, especially because they treat the discovery process as an adversarial adventure and notwithstanding the platitudes spoken about cooperation.

For example, a requesting party may attempt to use key words to over-collect documents. In one recent case, for example, where, pursuant to a stipulated order the defendant had sole discretion to specify search terms, the defendant submitted 400 search terms. Over the producing party’s objections based on cost ($6 million), which the court denied because of the stipulated order, these 400 terms yielded 660,000 documents.[15]

On the other hand, a producing party may attempt to under-produce. They may use key words to narrow the scope of the documents they must produce. In a different case, the plaintiff requested documents from the hard drives of 26 employees. The defendants used de-duplication to narrow the documents to be produced down from 423,835 to 129,000, and then used search terms to narrow the actual production down to 4,000 documents. The plaintiff objected, and wanted more, but the magistrate dismissed the plaintiff’s objections, stating “To the extent Plaintiff contests the adequacy of the search terms, it has not set forth an alternative search methodology; moreover, no specific challenge to the search terms has been brought and briefed before the Court.”[16]

Ah, now there’s a rub. Is there an alternative search methodology? Yes. But before describing it, let’s stay with key words for a moment. The goal, after all, is to use automated, computer-based searches to find as many of the potentially relevant documents as we can. All non-privileged information relevant to a claim or defense must be produced.[17]

But just how successful are key word searches? Test yourself. Here’s the proposition: Key words using Boolean connectors will find only about 25% of the relevant documents. True or false?

True! One of the founders of the “information retrieval” field, M. E. Maron (now professor emeritus, UC Berkeley) reported as long ago as 1985 that attorneys were over-estimating the efficacy of their searches. The attorneys thought they were identifying 75% of the relevant documents, but they were wrong: they were finding only about 20%.[18] More recently, studies show that key word searches are, even today, only a little more successful. Tomlinson and others reported in 2008 that Boolean searches identified only 22% of the relevant documents,[19] while Oard and others reported in 2009 that Boolean searches pinned only 24% of the relevant documents.[20] (These reports come from the Legal Track of the Text Retrieval Conference (TREC), which is administered by the U.S. National Institute of Standards and Technology.)

Now for attorneys used to key word searches, these reports are not good news. As previously noted, in the process of “early disclosure” and responding to document requests, an attorney must certify that, “to the best of [their] knowledge . . . formed after a reasonable inquiry,” their response to a document request is “complete and correct.”[21]

Is there an alternative methodology to key words and field terms? Yes. We come to it now: concept search.

Concept Search

What is concept search? Concept search is a way of finding patterns in unstructured data sets. Its sounds technical, doesn’t it? Yes, it is. It involves matrix algebra, formulas you don’t want to see (ever), and statistical concepts you don’t want to know about, but will be forced to learn anyway (note: more on this point, later).

Let’s stick with key words for a moment. Key words approach a document collection in a simplistic way; either a document contains the key word (or a variation of it) or it does not contain that word. Let’s say we have only two key words, w1 and w2, for our query, and that we find w1 in document 1, which we’ll call d1, and w2 in document 2, or d2; but we do not find w1 in d2 and we do not find w2 in d1. In the four-square box at the end of this sentence, a “1” means that the word in question is present, while a “0” means that the same word is not present:

Dox —> d1 d2

w1 1 0
w2 0 1

This simple “picture” is a hypothetical word-document matrix. It is clear that using w1 as “input” will result in d1 as “output,” but not d2. If we use w2 as input, we will get d2, but not d1. But if we are looking for a document with both w1 AND w2, we will get nothing.

But wait. This matrix is too simplistic. It consists of only two key words and only two documents. The documents in our collection, which will likely consist of gigabytes and terabytes of data, are certain to have many more than one word each. Here is the key to understanding what concept search engines do: they find with “co-occurrences” of words that are not used as search terms.

If a picture is worth many words, a bigger matrix should help. You can see what co-occurrence means by looking at the next matrix.

Dox d1 d2 d3 d4 d5 d6 d7 d8
Word
w1 1 0 0 0 0 0 0 0
w2 0 1 0 0 0 0 0 0
w3 1 1 0 0 0 0 0 0
w4 0 1 0 1 1 1 1 1
w5 0 1 0 0 1 1 1 1
w6 0 1 0 0 0 1 1 1
w7 0 1 0 0 0 0 1 1
w8 0 1 0 0 0 0 0 1

It starts in the upper left hand corner with the simple four square matrix of (w1, w2) and (d1, d2) that we first described. But then this matrix adds more words (w3 through w8) and more documents (d3 through d8).

Let’s begin with w3. It appears in both d1 and d2. When we were considering the four-square matrix, inputting w1 AND w2 did not result in either d1 or d2; it resulted in nothing. In the matrix below, if we input w3, we will get d1 and d2, because it is contained in both documents.

Now look at w4. It is contained in d2 and d4, d5, d6, d7, and d8. Similarly, w5 is in d2 as well as in d5, d6, d7 and d8 (so one less; w5 is not in d4). And so on. Now we can make some observations about our collection (or corpus).

First, note that neither w1 nor w2 are in any of the other documents, d3 thorugh d8, which is why, for the w1 and w2 rows, there are nothing but “0s” in the columns after d2. For both the rows for w1 and w2, the columns d3 through d8 are all zeros.

Also, no matter what word we use to query this matrix, will we ever get back d3? No. It has none of the words on the list.

Now let’s look at words w4, w5, w6, w7, and w8. Notice that w4 shows up in d4 through d8. Fine, that word is used frequently. But frequency is not the test.

The big idea of concept search is to find documents (as output) that are responsive to a query (using key words as input), based on co-occurrences. As output, we want documents that have key words in them, but also the documents that do not contain any of the key words but which are nevertheless potentially related and, thus, potentially relevant. We are looking for patterns.

In this regard, patterns can be strong or weak. Which document exhibits the strongest pattern? It’s d8. Although d8 does not have our input key words, w1 or w2, column d8 has five of the same content words contained in d2; that is, both d2 and d8 have words w4 through w8 in common. The weakest pattern involves the most documents but the weakest link: d4 through d8 all share only one word – w4 – with d2.

Computers do not understand “patterns.” They go through a process (a series of steps) which eventually leads to a measurable threshold, a cut-off point. To scholars in the field of Information Retrieval, such steps, including the mathematical scissors, is called an “algorithm.” In our simplistic hypothetical, if we want all documents that are potentially relevant, we might choose a cut-off where there is only one matching co-occurrence, a low threshold. If we want to find a “smoking gun,” we might search again, this time adjusting our process (algorithm) to find only the strongest co-occurrences. In this example, if we want, say, more than four (4) co-occurrences, the search output would be only d8.

See how this works? With concept searching, computers are going through gigabytes and terabytes of data consisting of documents and words, using a strictly mathematical approach.

This search methodology is called Latent Semantic Indexing or LSI. This term is best understood “inside out.” The “Index” part is simple. You have seen indexes before. They are at the end of nearly every book. Indexes indicate which words are on which page. Here, the computer ingests all of the documents and all of the words, and creates an index of each word that is contained in each document. We have just done this with two hypothetical matrices, one with two words and two documents, the other with eight words and eight documents.

What does “Latent” mean? Roughly speaking, it means “hidden.” And “Semantic” means, again roughly, “meaning.”

So, the phrase is actually descriptive of what we are trying to accomplish: find the hidden meanings (patterns) in a collection of documents, not because of the specific words we choose as input, but because of the other words in the documents containing the words we did choose and their “co-occurrence” with words in other documents, documents which do not contain our search terms.

Let’s deepen our understanding. As we did with the documents themselves, culling out exact duplicates and system files, let us cull our words. In LSI, we discard articles (like “a” and “an”); prepositions, conjunctions, common verbs (like known, see, do, be); pronouns (e.g., it, they); common adjectives (like big, late, and high); pointer or frilly words (like thus, therefore, however, and albeit); any words that appear in every document; and any words that appear in only one document. Now we are down to the core words that have semantic value; they have “content.” It is with these words that we form the word-document matrix.

Now we do some “weighting” (think “handicapping”). Some content words appear more than once in a single document. They are given greater weight; and the process of giving them more weight is called “local weighting.” Still other words show up frequently throughout the entire set, and because of this, they are “commonplace.” Words that appear in only a small handful of documents may have special significance. They get greater weight. This is “global weighting.” And there is a scaling step, called “normalization,” which is just like handicapping in golf. Some documents may be long ones and have many key words. To keep them from overwhelming the shorter documents, the larger ones are penalized a bit, so that every document has, approximately, equal significance.

Because LSI is mathematical, it is a search engine that “likes” addressing large collections of data. The more words and documents in the set, the better LSI performs at finding documents responsive to a query. And, after a fruitful search puts some documents into a “shopping cart,” a human being can learn from the initial results and iterate the process. With this feedback, the input terms are more focused and the LSI search engine is likely to produce even better results.[22]

LSI was not conceived to address the problem of search in the e-discovery context.[23] But it has found application in the world of e-discovery. Moreover, because many business and governmental endeavors involve more than one language, LSI is useful because it does not pretend to understand anything about the words it is considering. The words are, in a sense, digitized; then LSI creates the word-document matrix, and seeks out the patterns based on statistical co-occurrences. It is therefore as functional with words in Chinese, Korean and Japanese (or Arabic) as it is with words in English. Using LSI, “hot” documents across different languages can be identified. The next step is machine translation, which is not known for precision. So, the step after that is human review. And if certain documents appear to a human to be suitable for use in deposition, in a motion, or at trial, the final step is human translation, so that the translated documents can be certified and offered into evidence.

In the e-discovery context, you have likely seen LSI in action. You just didn’t know what was “under the hood.” Simply put, concept search based on LSI, or a variant of LSI, is now at the heart of programs that are offered by a number of different vendors, each of which has provided different “bells and whistles” to differentiate themselves.[24]

Why is LSI powerful? Because, when LSI is used on unstructured data, such as business communications, LSI returns documents that may be highly relevant that even power key word searching would miss. Here’s an example. In a stock option back-dating case, an LSI-based search returned documents whose common denominator (pattern) was the phrase “Let it roll.” Why return these documents? Remembering that LSI is designed to seek out hidden meanings, the consultants involved in the case called the “Let it roll” group to the attention of the litigators. Sure enough, this phrase turned out to be the “go” signal the executives were using to authorize the back-dating. Unless a power key word searcher made a lucky guess, the “Let it roll” documents – the key needles in a very large haystack – would have gone undetected.

So LSI has proven to be more efficient than key words, even though key words are still used in the queries that are framed. But could you have explained LSI to a court, in case you were challenged by opposing counsel to do so?[25]

It’s All Statistical

Now, finally, we come back around to whether an attorney can honestly sign off on the Rule 26 certification concerning the documents he or she has disclosed or produced. With a new appreciation for what goes into searching a collection for potentially responsive documents, the answer is “no.” We have a loophole. Attorneys are, by rule, being forced to certify to a degree of certainty that just is not there; and they put their licenses on the line when they sign.[26]

Suppose we have collected 100 million documents; how many should be produced? A suitably sized random sample will accurately reflect the number of responsive documents to be produced, no matter how large the set may be.[27] For a confidence level of 95%, with an error of plus or minus 5%, a random sampling of 1,537 documents must be examined. For a confidence level of 99%, with an error of plus or minus 1%, a sampling of 66,358 documents is needed. Thus, “if we have 100 million documents in the unretrieved set, we need to examine only 1,537 documents to determine within 95% confidence that the number of responsive documents in the unretrieved set is within the margin of error. If we find that there are 30 documents that were responsive in the unretrieved set, we can state that we have 95% confidence that the number of responsive documents in the sampled set is between 28 and 32 (rounding up the document count on the high end, rounding down on the low end). Extending that to the 100 million population, approximately 1,951,854 plus or minus 97,593 are responsive in the unretrieved set. [Para.] In the case of a review where errors are expensive (such as a review for privilege), 99% confidence with 1% error condition would require 66,358 samples. If we identify 200 privileged documents in such a sample, you will have 99% confidence that the number of privileged documents in the sample is between 198 and 202 privileged documents. ”[28]

Some Proposals and a Grand Conclusion

As previously mentioned, responding attorneys must currently certify that, “to the best of [their] knowledge . . . formed after a reasonable inquiry,” the disclosure or response to a document request is “complete and correct.” But in this digital era, attorneys must face up to understanding some of the math they hoped to avoid (forever) by going to law school, because attorneys are ill-equipped to flatly certify the “completeness” of their disclosures or responses. “[T]he assumption on the part of lawyers that any form of present-day search methodology will fully find ‘all’ or ‘nearly all’ available documents in a large, heterogeneous collection of data is wrong in the extreme.”[29] So how can attorneys vouch for “completeness”? Clearly, attorneys who continue to sign off on Rule 26(g) certifications are over-promising. They are venturing into areas where an expert’s opinion is warranted, if not necessary.[30] If a client is prejudiced when a court agrees, after some future battle over the alleged impropriety of an attorney’s certification, that “completeness” was promised but not achieved, will that attorney have fallen below the standard of care? Having likely ventured beyond his or her competence, will that attorney have violated a rule of professional conduct? Is a malpractice lawsuit in that attorney’s future?

We come now to four concrete proposals for change, and one grand conclusion:

Rule 26(g)(1)(A) should be changed to indicate (for example) that, with the assistance of experts, the document production is complete and correct, with a 95% confidence level and an error rate of plus or minus 5%;
Attorneys would be wise (as a matter of best practices) to sample for privileged documents, so that they are withheld with a 99% confidence level and an error rate of plus or minus 1%;
Malpractice insurers should be actively revising their applications for errors and omissions insurance to force attorneys to disclose the level of their e-discovery competence, and insurers should be monitoring, if not mandating, the continuing education of attorneys in e-discovery matters.
Besides being able to choose the format for the production of ESI, requesting parties should be able to designate the search methodologies used by the responding parties to search for potentially relevant documents. Otherwise, responding parties may use key words and search methodologies that under-produce to the requesting party.
The grand conclusion brings us back to loopholes. In an adversarial system, attorneys will exploit loopholes. And now you know that a large technical loophole besets our system. It besets every judicial system in the world, and we have not yet faced up to it.

We seek the truth. But now that there’s so much data, the best we can say about the truth is this: it’s statistical.

# # #

After graduating with a B.S. in engineering systems from the University of California at Los Angeles (U.C.L.A.), Nick Brestoff earned an M.S. in environmental engineering science from the California Institute of Technology (Caltech) and graduated from the Gould School of Law at the University of Southern California (U.S.C.) in 1975. For the next 35 years, Mr. Brestoff litigated business, employment, environmental, and other civil disputes in state and federal court. He is currently a consultant to businesses and attorneys through International Litigation Services (www.ilsTeam.com). Mr. Brestoff’s email address is nbrestoff@ilsTeam.com. He gratefully acknowledges editorial comments on drafts from Helen Marsh, attorney at law (California), Ken Rashbaum, attorney at law (New York), and Nicolas Nunez, P. Eng. (California).

--------------------------------------------------------------------------------
[1] Rule 26(g)(1)(B) applies the certification to discovery responses, and requires a certification that is “consistent” with the rules, which includes Rule 26(g)(1)(A).

[2] The Wikipedia entry for “Loophole,” as modified on 27 July 2010, was viewed by the author on August 27, 2010.

[3] Paley, Amit R. (May 17, 2005) “Wal-Mart Drops Plan for Side-by-Side Calvert Stores.” The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2005/05/16/AR2005051601271.html.

[4] Dolan, Matthew (September 22, 2009) “To Outfox the Chicken Tax, Ford Strips Its Own Vans.” The Wall Street Journal. http://online.wsj.com/article/SB125357990638429655.html.

[5] See PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., No. 1-:05-CV-657 (N.D.N.Y. 2007) (producing party ordered to re-produce ESI at its cost).

[6] See Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv-947-J-34 HTS (M.D.Fla. 2008) (conversion held improper; producing party order to re-produce ESI); L.H. v. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829 (C.D.Cal. 2008) (sanctions were imposed for the untimely (late) production of non-sortable PDFs).

[7] Federal Rules of Civil Procedure, Rules 26(f)(3)(C) [discovery plan] and 34(b)(1)(C) [content of the request].

[8] California Code of Civil Procedure §2031.030(a).

[9] Lyman, Peter and Varian, Hal, How Much Information? (2003); see http://www.sims.berkeleye.edu/how-much-info-2003 (reviewed on August 28, 2010).

[10] Ibid.

[11] Keteyian, Armen, “Digital Photocopiers Loaded with Secrets: Your Office Copy Machine Might Digitally Store Thousands of Documents That Get Passed on at Resale,” CBS News (New York, April 15, 2010); See http://www.cbsnews.com/stories/2010/04/19/eveningnews/main6412439.shtml?tag=mncol;txt.

[12] Gantz, et al., The Diverse and Exploding Digital Universe: An Updated Forecast of Worldwide Information Growth Through 2011 (March 2008) (Executive Summary). See http://www.idc.com.

[13] See Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010; as amended May 18, 2010) (Scheindlin, J.)

[14] Here is an example of a “power key word search” using Boolean operators (which were borrowed from computer programming): (successor /5 corporation) /p (toxic or hazardous or chemical or dangerous /5 waste) /p clean! and da(aft 1/1/90). In plain language, this search is for cases where a successor corporation is liable for the cleanup of hazardous (toxic) waste. The sample Boolean search looks for the combination of successor within five words of corporation, in the same paragraph as the combination of toxic or hazardous or chemical or dangerous within five words of waste, within the same paragraph as clean or cleanup or cleans or cleaned or cleaning (the exclamation mark in clean! causes the computer to search for all words with clean as a root). Cases are limited to those dated after January 1, 1990.

[15] See In re Fannie Mae Secs. Litig., 552 F.3d 814, 818-819 (D.C.Cir. 2009).

[16] See In re CV Therapeutics, Inc. Sec. Litig., 2006 WL 2458720 (N.D.Ca. Aug. 22, 2006).

[17] Federal Rules of Civil Procedure, Rule 26(b)(1); see Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316 (S.D.N.Y. 2003); SEC v. Collins & Aikman Corp., 256 F.R.D. 403, 417-418 (S.D.N.Y. 2009) (over objections based on cost, SEC ordered to produce emails; parties required to establish a reasonable search protocol).

[18] Maron, M. E., An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval Sys.,” 28(3) Comm. of the ACM 289 (1985).

[19] Tomlinson, Stephen, et al., Overview of the 2007 TREC Legal Track (April 30, 2008).

[20] Oard, Douglas W., et al., Overview of the 2008 TREC Legal Track (March 17, 2009).

[21] Federal Rules of Civil Procedure, Rule 26(g)(1)(A).

[22] Two tests are “recall” and “precision.” Recall is the proportion of relevant documents identified out of the total number of relevant documents that exist. If the total number of relevant documents is 100, but a search identified 80, the recall rate is 80%. Precision is the percentage of identified documents that were actually relevant. If 100 documents were identified but only 75% of them were relevant, the precision would be 75%. Using LSI, recall and precision rates just under 90% have been achieved. Source: Content Analyst Company, LLC (“Content Analyst”) in Reston, Virginia (http://contentanalyst.com). Content Analyst is the original patent-holder of LSI.

[23] See Landauer, T. K. and Dumais, S. T., “Solution to Plato’s Problem: The Latent Semantic Analysis Theory of Acquisition, Induction and Representation of Knowledge,” Psychological Review, 104(2), 211-240 (1977).

[24] There are at least three hosted review platforms that have integrated an LSI solution from Content Analyst: Relativity (by kCura), iCONECT, and Eclipse by IPRO. In addition, a variation of LSI called Probabilistic LSI is “under the hood” of Axcelerate by Recommind.

[25] For that matter, could you differentiate LSI from still other computer-based search approaches, including taxonomies, ontologies, and Bayesian classifiers? These topics are beyond the scope of this article.

[26] See Qualcomm, Inc. v. Broadcom Corp., No. 05 Civ. 1958-B, 2008 U.S. Dist. (S.D.C al. Jan. 7, 2008); and id., Order Declining to Impose Sanctions, Etc. (Document 998; filed Apr. 2, 2010).

[27] Search Guide, Electronic Discovery Reference Model Draft v.1.17 at p. 79 of 83 (May 7, 2009).

[28] Ibid.

[29] Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md. 2008) (Grimm, J.) (quoting from “Information Inflation: Can the Legal System Adapt,” 13 Rich. J. L. & Tech. 10 (2007), at *38, 40). See Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555*10 (S.D.W.Va. May 18, 2010) (failure to sample in order to identify and remove privileged documents was “imprudent”).

[30] In several recent cases, courts have made statements supporting the proposition that a certification of completeness of a large document product by an expert should replace certification by an attorney. For example, in United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008), the court stated, “Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics . . . . Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.” In Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008), the court stated, “Determining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) . . . .” And in In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 660 n. 6, 662 (M.D.Fla. 2007), the court criticized the defendant’s use of keyword search to select ESI for production, in particular because the defendant failed to provide information “as to how it organized its search for relevant material, [or] what steps it took to assure reasonable completeness and quality control,” and noting that “while key word searching is a recognized method to winnow relevant documents from large repositories . . . [c]ommon sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness.” (Emphasis added.)

Frederick Jelinek — A Semantic Giant Passes

2010-10-10T08:28:00.000-07:00

Posted by Douglas Forrest on Oct 5, 2010 | 0 comments

Frederick Jelinek, who revolutionized language recognition by using statistical theory and probabilities instead of codifying rules, died in his office at John Hopkins on September 14 at the age of 77. The approach that he pioneered in the context of computer speech recognition, analyzing text databases for word patterns and the probability of words appearing relative to other words in text databases, became the foundation for many applications beyond voice recognition, including, most importantly, automated classification and organization, e.g., predictive coding, in today’s advanced e-discovery tools and systems.

Dr. Jelinek survived the Nazi occupation of Czechoslovakia, where, as the child of a Jewish father and a mother who had converted to Judaism, he was barred from attending school and compelled to study underground. He emigrated to the United States in 1949. After earning three degrees from MIT, Dr. Jelinek taught at MIT, Harvard and Cornell before joining IBM, where he rose from a summer position to heading a team using supercomputers to analyze speech. After retiring from IBM in 1993, he was was recruited by Johns Hopkins to head its Center for Language and Speech Processing.

Approaches For Triaging Foreign-Language Documents

2010-01-12T12:08:00.001-08:00

Posted by: Joe Thorpe January 12, 2010

One of the many complications encountered with litigation involving international parties is dealing with large volumes of foreign language documents. Typical approaches range anywhere from asking ones international client for translation support, hiring bilingual reviewers to the case team, using Machine Translation (MT) to translate all of the documents and outsourcing documents for full translation.

In this post, I will discuss advantages and limitations of each of the above and add a few more options for your consideration as well.

In an earlier post, I referred to cross lingual concept searching and categorization. This critical process should be run in advance of any translation or review in order to reduce the volume of documents (and costs associated with that effort).

Asking client to provide staff for foreign language document review and translation support: this is a very good option if your international client has staff to spare. Client’s employees will already have some unique understanding as to their employers products and services, industry unique nomenclature and perhaps some idea as to the issues in question. At least some of these employees will need to be bilingual with good command of English in order to communicate well with the case team. It's less likely that these people will be trained in US law so the roles would be limited to that of helping case team identify potentially responsive/relevant documents for the US case team to evaluate.

In the event that the international client cannot provide any (or enough) staff for this function, you may want to consider outsourcing. Bilingual and native speakers can be made available either on site or by remote access to work with the case team. When remote, these people are usually billable by the quarter hour and can be utilized cost-effectively.

Using MT to Translate All of the Documents: efficacy of machine translation is determined by a wide range of factors. Generally speaking, European languages translated to English are far more accurate than Asian and Middle Eastern language machine translations to English. If the documents are converted directly from native text (computer created by Word processor, spreadsheet, presentation software etc.) the results will be much more readable than if they were scanned documents first converted by OCR. Scans of handwritten documents cannot be recognized by MT. (click here to see an example of enhanced MT)

Documents translated by machine will never be confused with documents originally written in English. Sentence structure, grammar and word usage simply will not be right. That's not even mentioning idiomatic problems which are abound. That being said, as often as not, the reader will get a gist of what is being said in the document; certainly useful in helping to decide documents which can be eliminated from the review. Also, useful in determining which documents require further treatment.

Post edited MT: this can range from lightly post edited to fully edited and ranges in cost from $.04 a word to $.10 a word in my experience. Lightly post edited helps tremendously in getting the context of a document and fully post edited MT is hard to differentiate from English originated text.

Abstracts: these are summaries that can be a simple title and a one line description at a cost of approximately 5 dollars per document to more full summaries ranging in cost from $10-$15 per document. These are particularly useful where documents are handwritten or otherwise not good candidates for MT.

Human Translation: by far the most expensive approach (costs usually range from $.25-$.35 per word) and given the above options, should only be used for documents expected to be used as evidence.

Need To Review Non-English Language Documents? Using Latent Semantic Indexing (LSI) and Machine Language Translation (MT) May Be Your Answer

2009-12-09T18:01:00.001-08:00

Posted by: Joe Thorpe on December 9, 2009

The litigation document review process is demanding enough when the files being reviewed involve electronically stored information (ESI). When international parties are involved, foreign language documents may be added to the mix. For many litigation case teams, the first impulse is to begin their document review either by hiring translators or by using machine language translation software.

Just finding bilingual people to work on the review team can be problematical. It also tends to be very expensive. Sending boxes of paper to a translation service is even more expensive. Costs can range anywhere from 20-40 cents per word! $200-$300 per page is not uncommon.

When that volume of foreign language documents (or data) amps up as it tends to do with ESI, many firms have resorted to machine (language) translation (MT). The problem with most MT programs is that they use a dictionary based translation schema which tends to translate words within sentences non-contextually. The resulting narrative is usually lacking in coherence often missing the point of the document being translated. Even if the proper mix of “trainable” MT tools are used to provide a decipherable text, the output frequently contains words evocative of but not the exact key search terms “anticipated” by native English speaking writers of the discovery order. Rather than risk missing responsive or relevant documents by “searching” for just those terms, review teams will turn to performing a page-by-page review of all the machine translated text. Plainly stated, typical searching and culling methods cannot be trusted so instead each page of the machine translated text will be reviewed.

My company’s projects regularly involve international parties and with many of these requiring the review of foreign language documents (from paper and ESI collections); we soon realized that we needed a better way to identify responsive documents other than eyeballs on each page.

For the last couple of years, our team has successfully employed a "Programmatic Issue Coding" approach using concept categorization and searching tools. Within Concept Categorization technologies, there are several underlying and vastly different technologies competing for that space. Most of these are linguistics based systems which attempt to create a language based taxonomy. These systems do not index every word in the document collection, but rather attempt to use indexed keywords to create a categorization based upon a fixed hierarchy. One may think of a Thesaurus as a taxonomy in that it is a multi-level arrangement of the English language words. Linguistics based systems will “crawl” a document collection searching for keywords (and their frequency of use within a document) and then classify that document putting it into the group of like documents recognized as belonging to that category.

This approach works pretty well where documents have a distinct, recurring and unifying idea, as do articles, compositions, etc. Email, business correspondence and much of what is found in organizational files aren’t as thematic. Oftentimes the subject listed in an email is not even close to the actual subject of the discussion as it has morphed over multiple threads of that same email.

Most importantly though, this approach is a non-starter where foreign language documents are concerned since linguistics based Concept Categorization programs used in US litigation based projects are formed on English taxonomies.

Fortunately, the concept tools that work better for us with English language based litigation documents also work well with documents of other languages. We decided to use tools built on Latent Semantic Indexing (LSI). The software tool looks at each word or phrase in text across the document universe noting co-occurrences statistically. By recognizing these, the tool can categorize (or search across) documents conceptually. As an example, it would note that the word “riot” frequently occurs in documents with the phrase “public unrest” as well as “tear gas” and “rubber bullets”. Using this tool, if a search were performed for “riot”, any of the phrases in my example would return a hit even absent the word riot. Documents found and identified by the case team as being responsive, can then be used as exemplars to train the system to find all “similar” documents and create a resulting category.

The LSI algorithm is mathematical – it understands nothing about what the word by itself means – it creates the index by the pattern it sees. It therefore is functional across English language based text or any other language. So if a riot is described conceptually in any language, it will be captured!

In our practice, we use the LSI tool as a methodology for finding and categorizing hot documents across multiple languages. In preparation for this process, the case team and the project management team use a query methodology against the unstructured text database (all collected files and ESI) using the LSI tool for concept search. Once a sampling of particularly relevant documents is found for each interest category, we use these documents to help train each issue or hot document category. We run these against the entire document corpus to code the documents to each category.

For foreign language documents, we often lead with the LSI based concept categorization process. Not only do we create categories for documents we believe need to be reviewed, we also are categorizing for documents not responsive. This process typically reduces the collection of documents by 50% or more.

The system will also create language identification tags which will identify each non-English language document found and these will be flagged accordingly.

It is after we recognize clusters of documents that are potentially responsive that we then apply MT to only those documents necessary for review. After MT provides an English rendering, we review. From these documents, the handful of documents believed to be highly relevant can then be human translated so they can be used as evidence.

Litigation Hold Missteps: Pre-waiver of Privileges

2009-10-26T16:55:00.001-07:00

By Diane E. Barry, Esq.

In Major Tours v. Colorel, the federal district court for the District of New Jersey held that the client (defendant Colorel) had waived attorney client privilege regarding ediscovery response process well before counsel began their actual discovery work. In other words, the privilege was gone before the attorneys even got there. For a closer look at this distressing case, see 2009 U.S. Dist. LEXIS 68128 (DNJ 2009). I found this case interesting because although the articulated reasons for the court’s result were unusual (pre-waiver of privileges) the fact pattern is not unusual and neither were the legal theories applied by the court. This result could spread to other jurisdictions without difficulty.

Major Tours is a discrimination action filed against the New Jersey Department of Transportation and named individuals. The essential: Plaintiffs (all owners of bus companies) claim that there have been discriminatory safety inspections of African American owned buses en route to Atlantic City.

A few important dates:

· In a letter dated May 14, 2002, Sen. Arlen Spector asked the Commissioner of the New Jersey Department of Transportation to look into constituent complaints regarding discriminatory conduct. The Commissioner wrote back that the complaints were unfounded.

· On Sept 11, 2004, Robert Sugarman, Esquire sent a letter to New Jersey Attorney and to the Commissioner of the New Jersey Department of Transportation alleging racial profiling of African American owned bus charter companies who charter trips to casinos in Atlantic City. Sugarman’s letter required a response within 2 weeks “to avoid recourse to litigation.”

· On June 15, 2005, the plaintiffs filed their Complaint.

· November 4, 2005, about 5 months later, the Deputy Attorney General sent the various defendants a letter letting them know that that he might need their assistance for, among other tasks, identification of documents.

· March 22, 2007, about 17 months later he sent out a formal letter requiring preservation of records. 2009 U.S. Dist. LEXIS 68128 (DNJ 2009) *4.

For the first year and a half, the case proceeded without unusual upset. However, when the subject of ediscovery arose, the defendants drew a line in the sand. They offered up a native production of their active data emails, but refused to produce any archived items. They eventually moved for a protective order as to the archived items due to burden and cost.

This is where the case started sliding south for the defendants. As part of the oral argument on the motion for a protective order, the court enquired about the adequacy of the defendants’ litigation hold efforts. The court wanted to know if the defendants had deleted any emails they were under a duty to preserve. The response to this question would affect the court’s decision on whether or not the defendants should be required to retrieve the archived items. 2009 U.S. Dist. LEXIS 68128 (DNJ 2009) *5.

Plaintiffs moved for production of the two litigation hold letters from the Deputy Attorney General to the defendants. The Defendants argued that the letters were privileged, and that without a preliminary showing of spoliation, which had not been made, the letters could not be ordered produced.

The court disagreed.

The court started out with the defendants. Generally, litigation hold documents are both attorney-client and attorney work product privileged. 2009 U.S. Dist. LEXIS 68128 (DNJ 2009) *6-*7. However, the court switched sides over the litigation hold.

The court noted that the “prevailing view” among courts considering the matter was that litigation hold letters are discoverable when spoliation has occurred. The court analyzed the opening litigation threat letters, and decided that the Sept 11, 2004 letter from Attorney Sugarman was sufficiently specific regarding the immediate threat of litigation to trigger the litigation hold duty. 2009 U.S. Dist. LEXIS 68128 (DNJ 2009) *11-*13. Since the earliest attempts at litigation hold did not occur until more almost two years later, the court thought it probable that that relevant documents had been deleted. (The court also had its doubts as to whether the first letter from the Deputy Attorney General actually qualified as a litigation hold letter, but left those aside for the moment.) This was sufficient to show probably spoliation, and to require production of the requested discovery letters.

Fast forward to the present.

The facts set out in Major Tours are not unusual. They illustrate every attorney’s worst litigation hold nightmares: the client had been put on notice but did not understand that it had been put on notice; important steps were not taken; relevant documents were destroyed; important privileges were waived. By the time the Complaint was filed it was already too late. The privileges had been waived years before counsel even began their litigation work.

Major Tours is unusual on two counts. First, counsel were blindsided when the court brought up these issues, sua sponte, during oral argument on their motion for a protective order. These issues are expected during motions for cost shifting, for spoliation sanctions, for motions in limine. Counsel were caught flat-footed because they didn’t expect them to accompany their motion for a protective order. Next, although litigation hold documents are often produced during litigation, often voluntarily in defense of spoliation claims. Major Tours was distressing due to the legal reasoning used. Pre-waiver of important privileges is a new nightmare for counsel to add to their litigation hold woes.

Lessons to be learned:

· Look at litigation hold issues carefully before undertaking a new litigation matter. What are you walking in to? Is there a colorable argument to be made that privileges have already been waived? If yes, document these items with your client and proceed with the understanding that your litigation response process may well be discoverable.

· Even without pre-existing litigation hold issues, litigation hold and ediscovery process documents should be treated from the outset as if they are not privileged and the opponents and court may well see them. These documents are often necessary as defensive items, to prove good faith or lack of bad motives in the discovery process. Be careful what you say in them, and have draft them with the understanding that the unfriendlies of this world will be looking them over with 20/20 hindsight.

· Litigation hold and spoliation claim issues can arise at any time during the discovery process and not just as part of motions to shift costs or specifically addressing spoliation. Be ready to address and defend at any point.

Discovery Strategy & Management
International Litigation Services, Inc.
dbarry@ilsTEAM.com

Using Interpreters in Litigation

2009-09-01T15:30:00.000-07:00

By Mark S. Shipow, Esq.

IN A GLOBAL ECONOMY, in which it is increasingly common to have disputes between individuals and companies from around the world, interpreting from a foreign language into English requires significant attention. It is not enough simply to hire an interpreter on someone's recommendation and then let the interpreter take it from there. On the contrary, there are a number of legal and practical issues that should be considered when using interpreters in the course of litigation.¹

The first issue counsel needs to confront is whether to use an interpreter at all. Often there is no choice; it is clear that the client simply cannot testify in English, or the other side's witness demands an interpreter. Sometimes, however, it is a close call. The witness may not be fluent but can understand and be understood. If there is a genuine dispute between the parties regarding the need for an interpreter, ultimately it is the province of the court to determine.² More commonly, however, the decision is one of strategy. It is important to make a good decision early in the litigation, since it is difficult to change the approach at trial. A witness who testifies through an interpreter at deposition and then without an interpreter at trial, or vice versa, is likely to lose credibility.

Sometimes counsel automatically insists on an interpreter for his or her client's deposition simply to play it safe or make things more cumbersome for the other side. However, that approach does not necessarily benefit the client. Counsel should consider various factors. Cost is one; interpreters add expense. In criminal cases, a court is required to appoint an interpreter when necessary for the defendant to communicate. There is no such requirement in civil cases.³ As a consequence, civil litigants must pay for their own interpreters. But strategic considerations almost always are more important than cost.

A major consideration is the importance of the witness communicating directly with the judge or jury, weighed against the importance of the testimony sounding like what the jury expects. When a witness testifies through an interpreter, the time lag between the testimony and the interpretation often disconnects the emotions, gestures, and speech of the witness from the English interpretation. This can reduce the impact of the testimony. Furthermore, it is very difficult for an interpreter to convey the nuances of what the witness means or what the witness's state of mind is. Truly, much is lost in the translation. On the other hand, a witness who is not reasonably skilled in English probably will not be able to convey nuances or emotions without an interpreter. Moreover, jurors may be jarred by hearing a witness speak with a heavy accent, use unfamiliar idioms, or make errors in vocabulary and grammar, and may be frustrated by having to struggle to understand the witness.

Another factor is whether the witness has been in the United States for a long time or regularly conducts business in English. It is counterproductive for a witness to be thought of as trying to hide behind the interpreter or taking advantage of the extra time that the interpretation takes in order to concoct answers. Similarly, if the witness uses English to speak with his or her attorney (such as in meetings or preparation sessions or at the deposition itself), using an interpreter to speak with opposing counsel in the deposition may make it appear that the witness is playing games. In this regard, counsel deposing a witness who is using an interpreter should ask the witness to testify about his or her use of English. Does the witness use English at home, in business meetings, and in conversations with counsel? This can be a way to undercut the credibility of a witness who uses an interpreter at the deposition.

Although not determinative, some consideration should be given to the fact that using an interpreter at least doubles the time it takes to provide testimony, whether in deposition or at trial. Questions and answers are stated twice (once in each language), objections often are interpreted,⁴ issues of the accuracy of the interpretation invariably arise and take time, and more frequent breaks are necessary. This can be frustrating and expensive and substantively affect the case if there is a time limit on the witness's testimony. Judges sometimes do not understand how much extra time is needed for interpreted depositions and may not permit extra time if the other party objects to how long a deposition is taking.

Also, an interpreted deposition permits the attorney somewhat less control. If a deposition is given entirely in English, the attorney can interrupt his or her witness if the witness appears to be heading into a problem, such as revealing privileged information. In an interpreted deposition, the answer can be given (at least in the foreign language) before the attorney has a chance to do anything.⁵ Even if the interpretation is not provided, the answer will be understood by anyone in the room who understands the foreign language (such as an opposing party), and if the deposition is being taped there will be a recording for possible future use.

Whether an interpreter will be required typically becomes apparent early in litigation, although sometimes the need for an interpreter arises only after a witness who does not speak English is identified. In either situation, as soon as a decision is made that an interpreter is needed, counsel should take steps to identify a qualified interpreter. Government Code Section 68561 require use of a court-certified interpreter in any "court proceeding" using a language designated by the Judicial Council under Section 68562(a), except for good cause shown.⁶ A court proceeding is defined as any civil, criminal, or juvenile proceeding, including a deposition in a civil case.⁷ One source of interpreter candidates is the court's list of certified interpreters.⁸ However, as in any other profession, certified interpreters have strengths and weaknesses, and some may be better than others in particular situations. In deciding which interpreter to use, an attorney should consider numerous factors.

Court certification is beneficial and helps to overcome objections or reservations from judges or opposing counsel. However, court certification is not a guarantee, and not necessarily even an indicator, of competency. Conversely, an interpreter who is not court certified is not necessarily unqualified.⁹

Ideally, the interpreter should be fluent in English and the foreign language. However, most interpreters are stronger in one language than the other. In that situation, attorneys are well advised to use an interpreter who is stronger in English than in the foreign language. It is critical to have an English interpretation that a judge or juror will readily understand. After all, the main purpose of the interpretation exercise, as with every other aspect of litigation, is to be able to provide information to the fact finder in a clear, cogent, and understandable manner. That purpose is undermined by having an interpreter speak in halting or stilted English.

Another factor to consider is whether the interpreter is experienced in litigation. Interpreting at a deposition or during trial is quite different from interpreting at a business meeting. The interpreter must be familiar with, and not intimidated by, the adversarial process, including interpreting pointed cross-examination questions, handling arguments between counsel, understanding legal terms, and dealing with an interpreter who checks the first interpreter's work. Also, a litigation-savvy interpreter is more likely to understand the need to provide precise interpretations, rather than simply conveying the gist of the question or the testimony. Interpreters who primarily handle business meetings are used to conveying the sense of what the speaker intends, taking liberties to interpret what is meant. And this is much easier and safer to do when people are conversing about business issues. In contrast, litigation typically hinges on rather specific events, statements, words, and phrases. More precise interpretations are required. In this regard, it also is important that the interpreter be experienced in seriatim interpretation (providing the interpretation after the statement rather than simultaneously).

Before retaining an interpreter, counsel should interview the candidate, in person if possible. If counsel has access to someone who is fluent in, or at least knowledgeable about, the foreign language at issue, include that person in the interview. Even with an interview, it may be difficult to gauge the interpreter's skills in the foreign language. At the least, confirm that the interpreter's English is strong, so that the interpretations will be understandable, that the candidate will be able to get along with you and others involved in the case and survive the ups and downs of litigation, and that the candidate will be generally available for assignments so that you do not need multiple interpreters working on the case. Speaking to other attorneys who have used the interpreter will help in considering these factors.

After selecting a primary interpreter, it is good practice to identify a backup interpreter. Having another interpreter preselected will help in the event that the primary interpreter is not available or is unacceptable to opposing counsel, or a checking interpreter is needed, or other circumstances arise that prevent using the first choice.

______________________________________________________

1 The terms "interpreter" and " translator " often are used interchangeab1r. However, an interpreter is one who takes the meaning of oral statements (such as testimony) from one language to another, while a translator is one who takes the meaning of written statements (such as documents) from one language to another. See Evid. Code §751(a) (interpreter required to "make a true interpretation of the witness' answers") and §751(c) (translator required to "make a true translation ...of any writing").

2 Hilbert v. Kundicoff, 204 Cal. 485 (1928).

3 See Jara v. Municipal Court, 21 Cal. 3d 181 (1978).

4 See Standards of Judicial Administration, Standard 2.11(a)(11).

5 Once an answer is given, an interpretation may be required. See People v. Wong Ah Bank, 65 Cal. 305 (1884) (It is the duty of the interpreter to report every statement made by the witness; the court should require strict compliance with this requirement.).

6 At the end of 2007, the languages designated by the Judicial Council were Arabic, Cantonese, Eastern Armenian, Western Armenian, Japanese, Korean, Mandarin, Portuguese, Russian, Spanish, Tagalog, and Vietnamese. See http://www.courtinfo.ca.gov/programs/courtinterpreters.

7 Gov’t Code §68560.5. As a practical matter, many attorneys use noncertified interpreters for depositions. In the absence of an objection by opposing counsel, a court is unlikely to intervene, but a court likely would require a certified interpreter if the issue were presented prior to the deposition, or if opposing counsel preserves the record with a proper objection. The certification issue may trap the unwary in international litigation if opposing counsel preserves the record with a proper objection. For example, if a deposition is taken in a foreign country through the use of a non-court-certified interpreter, and a proper objection is made, the deposition testimony may not be allowed at trial. Since the out-of- state witness would not be subject to the subpoena power of the California courts, the witness's testimony may be unusable. See Code Civ. Proc. §1989.

8 See http://www.courtinfo.ca.gov/program/courtinterpreters for a list of certified interpreters.

9 See People v. Roberts, 162 Cal. App. 3d 350 (1984); People v. Estrada, 176 Cal. App. 3d 410 (1986).

International Litigation Services, Inc.

mshipow@ilsTEAM.com

Is There an Elephant in the Room?

2009-07-16T23:05:00.001-07:00

By: Joe Thorpe

Litigation is a constant. Government regulation is on the increase in virtually every corner of American finance. The Federal Reserve, the FDIC and the SEC all have expanded powers and the Obama administration is creating a dizzying array of new agencies and councils. Virtually every major corporation now has a professional team of corporate compliance officers and their plates are already full.

Whatever happens to the economy in the next few years, one thing is crystal clear: your corporate legal department’s costs are on the rise. This will be the case regardless of your corporate line of business notwithstanding that you are a good corporate citizen.

Frederick Nietzsche in his book, Ecce Homo: How One Becomes What One Is penned his famous quote, "whatever doesn't kill you makes you stronger". When I mentioned this to a friend the other day, he quickly pointed out that soon after his book was published, Nietzsche went stark raving mad and lived for 11 more years. I'm not sure if it was drugs, syphilis or nervous breakdown but whatever it was, it didn't kill him and it certainly didn't make him stronger. After thinking about it, I think my friend was right. Merely surviving a calamity isn't what makes you stronger. What makes you stronger is identifying what's wrong and doing something about it.

Identifying the problem as to corporate litigation expense is actually the easy part. Examine your billing statements and you will find that at least 70% of your litigation expenditure on any given matter is related to discovery and the lions-share of that is the document review. Reviewing documents for responsiveness, privilege etc. has always been a fundamental requirement of the discovery process. And, that process has always involved handing over the requirement to outside counsel. Much of the document review in the larger firms is being conducted by first and second year associates and managed by more senior attorneys. What has changed is that we are no longer focusing this document review around 20 or 30 boxes of paper. Now it's 20 or 30 GB of electronically stored information (ESI) and a first-year associates’ billing rate these days is at least $250 per hour. The same is true with document reviews for government investigations and regulatory compliance. The target documents are no longer measured by boxes but by gigabytes or terabytes and the billing rate for large firm first years are….well, you can fill in the blank.

Now to put some perspective on this, consider that we are looking at approximately 12,000 documents per gigabyte. In a straightforward first pass review we might expect a reviewer to get through approximately 600 documents per day. Therefore, 20 days to review 1 GB or 12,000 documents. If the billing rate is $250 per hour we would be looking at approximately $40,000. That probably wouldn't include his or her manager’s time for direction and work review and oh yes, there were 20 GB needing to be reviewed. Just a tad over $800,000!

In the cost calculator below, with 40 GB collected and at a filter rate of 50%, we illustrate the above scenario of 20 GB for attorney review (240,000 documents), together with collateral costs. Note that costs for collection, filtering, processing and document production together represent just over 7% of the total costs. My conclusion: Yes, there is an elephant in the room!

International Litigation Services, Inc.

jthorpe@ilsTEAM.com

Content Analyst: a Latent Semantic Indexing tool for Issue Coding, Concept Categorization and Searching of Litigation documents

2009-05-18T13:12:00.001-07:00

By: Joe Thorpe

Content Analyst: performs categorization (for issue coding) and searching by concept. This is a purely mathematical approach which pays close attention to words and "phrase concept" co-occurrence over a large body of documents. If in your documents for example there are a number of references made to my property management group called the Endurance Management Group (EMG) and one of the properties that they manage for me is called the Thorpe Towers, the software will figure that out. A search for Endurance Management Group will return documents with the Thorpe property even if no reference is made to EMG or Endurance. And, if that document involves discussion of a complicated 1031 exchange, you can use that document to train a category for 1031 and it will get each reference where found in other documents -- even when the transaction is discussed in other ways not specifically referencing the term 1031. Here is a link that speaks generically of the LSI approach which does a much better job of describing how (and why) it works.
http://knowledgesearch.org/lsi/lsa_definition.htm

There is a competing technology to the LSI approach stemming from the "Bayesian" set of algorithms -- the objective of categorization software using the Bayesian approach is to create a taxonomy and structure thusly.
This is a linguistics based approach, the idea behind which is to index the entire corpus of data and let the program generate the common topics that it finds and organize the documents against these topics. This approach tends to work better when the documents are all articles each following a well organized theme.
In business communications (i.e. e-mail, etc.) conversations are typically all over the map. Too often the subject line bears no resemblance to the key points in an e-mail thread nor does the writer put much organization into the content. For documents in litigation databases, we found very little value in the Bayesian methodology.

Our preference for the Content Analyst engine using the LSI method culminated a four year search for a categorization tool that really provided value to the mining and organization for an unstructured document database as is the case with a large collection of litigation documents. This product would not be as useful in a Concordance or a Summation environment – it’s not yet integrated so it wouldn’t be interactive through a document review process - but it is supported in any of the following three hosted review platforms: Relativity (by kCura), iConect and Eclipse by IPRO. Each has integration to the Content Analyst system. All are very well respected litigation database platforms (for online document review) and each provides the flexibility of being able to re analyze and index throughout the document review process.

International Litigation Services, Inc.

jthorpe@ils-ipp.com

eDiscovery a.k.a. “The Money Pit”

2009-05-06T17:15:00.001-07:00

By Joe Thorpe & Diane Barry Esq.

Are Rising Discovery Costs Inevitable?

Most corporations long ago resigned themselves to the fact that litigation is just another part of the cost of doing business. Fortunately, given the current state of the economy, many corporations are re-examining this “fact.” Across the corporation, departmental budgets are being reconsidered and trimmed of excess. One of the most intransigent items is the litigation budget. Costs are rising sharply, and corporations are often frustrated in their efforts to contain costs which seem largely beyond their control.

Discovery costs are often the highest price items in the litigation equation, and discovery costs associated with ESI lead the pack. The sheer volume of ESI (electronically stored information) which a corporation creates during the ordinary course of its business is an endlessly increasing number. In turn, this number has pushed discovery costs into a dizzying inflationary spiral. Identification, collection, production and review costs can be staggering, raising the price tag of even relatively small litigation matters.

Many corporations turned to their counsel and eDiscovery experts to assist them in taming the wild costs associated with discovery. Their advice: be prepared. Litigation Preparedness programs were designed and implemented to solve the rising costs of untamed ESI discovery. The expert advice: if the corporation only had a better understanding of its information and regulatory and legal requirements, and used “best practices” for collection, preservation and production, costs would be reduced. Improvements were made, but usually, litigation costs did not reverse. Instead, they simply rose at a slower rate. Substantial savings have been made through preparedness but no essential change in the inexorable rise of litigation costs has been achieved.

The Process Is Broken

For corporations which have embraced litigation preparedness, litigation risks have been made more manageable. There have also been substantial reductions in the per item costs to collect, review and produce discovery materials. However, since the number of paper and data files which need to be produced in litigation continue to rise almost exponentially, overall discovery costs likewise continue to rise sharply.

This is because despite improvements to the current discovery and production process, the process itself remains the same. Most companies continue the age old practice of coordinating with outside counsel to work the discovery process. It is time to consider not the individual work points on this process, but the inevitability of the process itself. The process does not lend itself to cost reductions because the process itself is broken.

Studies show that where eDiscovery is involved, up to $.70 of the litigation dollar is spent on the identification, collection, processing, review and production of ESI. This statement is misleading, in that it gives the impression that all points on the listed work spectrum have an equal share of the associated costs. (i.e., that collection has the same proportion of the overall cost as production). Any corporation which has examined its legal bills has come to the conclusion that this is not true. The single most expensive point of this process (more than 80% of the discovery costs) is and will continue to be legal review. The costs of identification, preservation and collection pale in comparison. Attempts to reduce the overall costs of discovery by containing the costs associated with these points have failed to produce the desired level of savings.

For discussion, let’s look at the below figures, which illustrate the costs associated with a basic ESI production.

The below chart assume that there are 75,000 page equivalents, or 15,000 documents per gigabyte (roughly 5 pages per document).

Matter #1

Service	Volume (GB)	Doc Count	Cost
Data Collection	20	300,000	$1000
Process and Filter	20	300,000	$12,000
Filter Data	14	210,000
Attorney Review	14	210,000	$420,000
Hosting	14		$6,300
Production		136,500	$68,250
Total			$507,550

The costing assumptions are as follows:

Data Collection	$50 per GB
Process and Filter	$600 per GB
Volumes Remaining (GB) after Filtering	14 GB
Three months hosting charges (14 GB)	$150 per GB per mo.
Attorney Review	$150 per hour
Docs reviewed per day per attorney	600
Production	$.10 per page

As you can see, the collection, processing, filtering, hosting and production charges, taken all together, represent less than 20% of the total cost. The document review costs are what push this project into orbit.

Most corporations are approaching the process through costs containment, and as a result, are achieving only limited success. They have discussed the costs with their outside firms asking them to come up with a different plan for document review. Some have instructed them to explore the use of contract attorneys (which could easily halve the document review costs.) Still others have explored using offshore document reviewers, which has the potential to lower costs even further. All of these options cut costs, but the overall costs of discovery continue to rise.

When the Corporation Controls the Process

The time has come to admit that this process is broken. Reducing the price points of this process will never provide corporations with the cost reductions they seek. Corporations must adopt a different model if discovery costs are ever to be brought under control. Most specifically, corporations must place themselves firmly in the driver’s seat and change institutional practices which abdicate responsibility for basic discovery decisions in favor of outside counsel.

Let us say up front, this article is not intended to bash or otherwise cast full blame on outside counsel. Instead, it is our intention to point out that outside counsel and their corporation clients have different goals and perspectives on the discovery process. Many of outside counsel’s discovery process decisions are rational and necessary from their point of view, but fail to address the considerations, including the cost considerations, dear to corporations.

Problems arose for most corporations years ago when it became standard practice to outsource ESI discovery management to outside law firms. A decade ago, ESI discovery took many corporations by surprise. A timely response required a fair amount of technical expertise and practical know how, and corporate IT resources were otherwise occupied with the day to day business of the business. Rather than build in-house expertise and resources, corporations elected to outsource. As this was a litigation related issue, it was reasonable to outsource it to litigation counsel.

This decision has proved a costly one. First, few outside counsel firms have as much expertise in the technical aspects of ESI discovery as they have with the legal and strategic aspects of a litigation matter. And yet, they are responsible for designing and managing the technical aspects of the corporation’s ESI discovery. Also, many corporations engage multiple outside counsel firms. As a result, a corporation can have as many different processes for producing ESI as it has outside counsel. Finally, an outside law firm lacks the global view of the corporation’s documents and total litigation matters which inside counsel must have. Outsourcing ESI discovery to outside counsel guarantees that each matter’s discovery will be considered in isolation, with work common to more than one litigation being performed (and paid for) again and again (and again.)

The answer is for corporations to drastically redesign their model for management of ESI discovery. Rather than outsourcing discovery decisions to law firms, corporations must take up the management role.

Consider the following example. Many corporations are serial litigants, and certain documents are in constant demand. The email of the head of sales for a particular year may be of interest in several ongoing and future litigation matters. Under the outsourcing model, that executive’s laptop and emails will be sent to multiple sets of outside counsel for privilege and relevance review. The corporation will therefore pay for privilege review costs as many times as there are litigation matters which request those files. The outside law firms can hardly be blamed. They have no information to let them know which files have been reviewed already, and what decisions were made as to each record. They are not provided with the TIFF image or PDF of the document created in a prior litigation. No one tells them that the document was produced to the SEC last year (privileged or not). Therefore, each outside law firm receives documents for a matter, it starts from scratch: identify, collect, process, review, produce. The costs for multiple treatments of the same documents are paid for by the corporation multiple times each year.

Consider also the costs associated with responding to federal court 26(f) conference preparation requirements. The law firm requests the documents it wants, and requests the formats most convenient for its systems. These choices are not always the most cost effective or convenient for the corporation. (The corporation usually finds out after the agreements have been made.)

Do your corporation personnel like to use MACs? Most litigation systems don’t handle MAC files well. A law firm may have only one client with this need (your corporation). Your matters always need it. A serial user will always get a better price than a single matter license. The same goes for foreign language translation, cross-lingual search tools (search in English and get results in Japanese); and foreign language search tools.

Rewind and consider the same litigation matters and how they would have proceeded if the corporation were in charge of the discovery issues. First, the corporation is in the best position to store and track the complete and uniform treatment of its own litigation discovery materials. The corporation could keep a litigation ready archive, storing litigation ready copies of the documents (metadata intact and images where they are available). Any prior decisions regarding each document can be stored in the same database record. This document was claimed as privileged – in X v. Y litigation, on date Z. When a litigation matter commenced, the store could be searched, and relevant materials exported out. A complete history of the document could go with it, including its prior review treatment. (This item is privileged, and was reviewed in 2007 by law firm X). For most purposes, if the item was reviewed before, it need not be reviewed again – proceed directly to production or to privilege log. Skip attorney review for this item.

The corporation could own the hosting and review platforms – either hosting the data through in-house resources, or by contracting directly with outsource companies. When the corporation owns the keys to the system, it can let in which ever counsel it deems appropriate. If it changes law firms, passwords/keys to the system can be almost instantaneously withdrawn and new keys to the system provided to the new outside counsel. There is no need to negotiate the return of litigation documents and records. The corporation never gave up control and therefore still has them all.

Looking at the process this way, let’s look again at our ESI review model.

In this model, the corporation has assumed responsibility for building an eDiscovery process, and retains control while working with an outside law firm. Multi processing and review costs are avoided; uniform results maintained; individual corporate needs (MAC and foreign language issues) are met; litigation duties are fulfilled.

Matter #2

In this example we assumed a rate of 40% recurrence (10 custodians, four of which were previously collected in matter #1). Therefore, only 60% of the 210,000 documents require a level 1 review (privilege and relevance). That number will go up or down depending upon the type of business and the similarity between matters. Naturally, more savings can be realized through use of contract attorneys managed by outside counsel. Needless to say, there can be another 30% reduction in overall cost in matter #3.

This approach assumes that the corporation controls the process – retains control of access to the hosted document repository from which all documents are reviewed and decisions as to the individual items are maintained there. Document notes, tags and work product together with logins and credentials for outside counsel users are controlled and managed by the corporation.

Service	Volume (GB)	Doc Count	Cost
Data Collection	20	300,000
Process and Filter	20	300,000	$7,200
Filtered Data	14	210,000
Previously Produced	(These documents can be produced without review)	81,900
Attorney Review		128,100	$256,200
Hosting	14		$6,300
Production (previously produced documents at three cents per page)		165,165	$53,917.50
Total			$324,417.50

A Promise Unrealized

ESI is the product of a technology that changed the face of corporate America. Information Technology has transformed the way we work and live. It has also been the catalyst for every process reengineering initiative in business over the last fifteen years. In companies everywhere each department has been rebuilt from the foundation with astounding end results. There’s just one more department to go. A drastic redesign and reassignment of responsibility for ESI discovery can at last provide the cost savings corporations have longed for.

International Litigation Services, Inc. (ILS)
213.687.7400
http://www.ilsTEAM.com/