1 USING TECHNOLOGY TO FACILITATE PRODUCTION OF E-DISCOVERY Minnesota E-Discovery Working Group 5 INTRODUCTION I. EARLY DATA ASSESSMENT A. Introduction to Early Data Assessment B. Technology Functionalities and Options for EDA C. Strategic Considerations for Choosing an EDA Approach and Choosing Technology in Specific Cases D. Legal Obligations: How Much Must You Disclose to Opposing Counsel About Your EDA Approach (and Do You Want to Disclose Even If It Is Not Required)? E. Additional Sources of Information Relating to Early Data Assessment II. EFFICIENT AND DEFENSIBLE REVIEW A. Cost of Review B. Managed Review C. Roles and Responsibilities III. PRODUCTION FORMAT A. Production Specifications B. Standard Production Requests C. Production of Specific File Types D. Final Thoughts About Production IV. SOCIAL MEDIA AND E-DISCOVERY A. Social Media and ESI B. Potential Social Media Evidence Uses The Minnesota E-Discovery Working Group is a grassroots organization that was founded in 2011 with the goal of writing five separate papers that address various aspects of e-discovery best practices from a Minnesota perspective and could be used as a resource by both judges and lawyers in Minnesota. Its members consist of members of the Minnesota judiciary, in-house attorneys, attorneys practicing with law firms across Minnesota, and e-discovery experts. The Working Group and the William Mitchell Law Review thank Briggs & Morgan, P.A. and Fredrikson & Byron, P.A. for their financial contribution to this joint project. 588
2 2014] USING TECHNOLOGY IN E-DISCOVERY 589 C. Discoverability of Social Media Posts D. Requests for Production E. Recovery of Social Media Evidence F. Computer Hard Drive Data Recovery G. Social Media Visualizers V. SMART PHONES AND TABLETS: ESI FOR REVIEW A. Types of Content on Portable Devices B. Other Content Metadata C. Another Data Source Service Provider Business Records D. Another Data Source Call Detail Records (CDR) E. Text Messages VI. CONCLUSION APPENDIX A: PRODUCTION FORMATS APPENDIX B: HOW IS E-DISCOVERY DIFFERENT FROM DIGITAL FORENSICS? APPENDIX C: SUBPOENA TO FACEBOOK About the Authors Timothy J. Pramas (Co-Chair) is Senior Associate General Counsel for the University of Minnesota s Office of General Counsel. Tim previously worked as an attorney at Manty & Associates, P.A., where he represented clients in a wide variety of civil litigation and was a frequent lecturer on e-discovery issues. Tim also worked at SUPERVALU INC. as a Litigation Attorney where he spearheaded many of the company s electronic discovery initiatives. Allison Berres is the Director of Client Solutions for the Client Technology Group at Faegre Baker Daniels. Allison manages the The views expressed herein do not necessarily reflect the views of the firms and companies listed or the Minnesota State Judicial Branch. Working Group 5 wishes to acknowledge the contributions of John J. Carney, who contributed content for the social media and mobile technology portions of this paper. Working Group 5 also wishes to acknowledge co-chair Caroline Bourdeau Sweeney, of Dorsey & Whitney LLP, and committee members Michael Dewberry, of Blue Cross Blue Shield of Minnesota; Mary Harens, attorney at Mary Harens Law Office; Kristin Lehmann, attorney at Knoll Onrack, Inc.; Michael J. McGuire, attorney at Littler Mendelson; Matthew Pederson, of Dell Compellent; and Patrick Williams, attorney at Briggs & Morgan, P.A., for their contributions to the Working Group.
3 590 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 delivery of litigation support and e-discovery services. She is responsible for developing and managing best practices protocols and policies in e-discovery legal practice, process, and technology. Shannon L. Bjorklund is an attorney at Dorsey & Whitney L.L.P.. She focuses primarily on litigation involving the healthcare industry, including intellectual property litigation, and counseling public and quasi-public entities on document retention, discovery obligations, and public records law. Emily E. Duke (Co-Founder of the Minnesota E-Discovery Working Group) is a shareholder at the international law firm of Fredrikson & Byron, and co-chairs the firm s Electronic Discovery Resources Group and its Data Protection and Cybersecurity Group. She advises clients on data security, mitigating risk, and protecting business know-how, trade secrets, and assets. Steven J. Ellison the owner of Ellison Law Offices, P.L.L.C., has served on the Steering Committee for the Defense Research Institute s section on product liability and e-discovery issues. He routinely counsels clients on electronic discovery, data management, and data-storage issues and is a frequent speaker on those subjects. Andrew Hansell is an Associate Vice President in the Legal Services Outsourcing Division of CPA Global. He works with corporate clients to manage end-to-end document collection and review in government investigations, business transactions, and civil litigation, including as a member of the national counsel team for a manufacturer involved in an industry-wide product liability multidistrict litigation. Sean Harrington is a digital forensics consultant for his local firm, Attorney Client Privilege, L.L.C. and also a cybersecurity policy analyst and risk assessor for US Bank. Sean has served on the board of the Minnesota Chapter of the High Technology Crime Investigation Association, is a current member of Infragard, the Financial Services Roundtable legislative and regulatory working groups, FS-ISAC, and is a council member of the MSBA s Computer & Technology Law Section. David S. Miller is a Senior Discovery Consultant at Falcon Discovery, Inc. In that position, he advises and assists Falcon s clients on all aspects of the e-discovery process, from litigation holds, collections, searching, reviewing, and production. Frank L. Nelson is the E-Discovery Manager at the law firm Nilan Johnson Lewis, PA. Frank has served on the board of the
4 2014] USING TECHNOLOGY IN E-DISCOVERY 591 Minnesota Association of Litigation Support Professionals and is a regular speaker at industry conferences and association meetings covering topics related to e-discovery. Kimberlee Nelson has more than twenty years of experience managing complex litigation matters and developing methodologies and best practices for all stages of the e-discovery reference model (EDRM). In her current role as an independent e-discovery consultant, she partners with her clients to strategically manage current matters and proactively prepare for future litigation. Patti Ray is Vice President at Carney Forensics where she manages sales and marketing, operations, and customer service. She works with corporate clients, legal firms, and top private investigation agencies nationwide to build partnerships that deliver mobile, computer, and online evidence strategies. Sean Reisman is a managing attorney at CPA Global, specializing in e-discovery project management, litigation drafting, and legal research. In addition to managing large-scale e-discovery matters, he advises clients on efficient work flows and review technology. Jennifer G. Swanton is Discovery Counsel for Medtronic, Inc. where she works on discovery issues arising from various legal matters including IP, product liability, class actions, and shareholders suits. Jennifer has extensive experience in the e-discovery vendor space and currently manages an e-discovery certificate program for the Organization of Legal Professionals Megan A. Thwaites is Litigation Counsel for the Chief Litigation Office at Boston Scientific Corporation. Meagan manages the Litigation Support team, which handles litigation and discovery efforts and is also responsible for the management of Boston Scientific s electronic discovery practices, data processing and document review vendor relationships, and in-house electronic discovery tools. INTRODUCTION Group 5 of the Minnesota E-Discovery Working Group focused on technology to assess, review, and produce data. Chronologically this phase occurs after data are preserved and collected, which are topics addressed by other groups. This paper is divided into five parts and discusses the ways in which technology can be used to facilitate discovery of information that may be stored on electronic
5 592 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 devices. More specifically, the five sections address (1) early data assessment, (2) efficient and defensible review of electronic data, (3) production of electronic discovery, (4) issues pertaining to review and production of social media and electronic discovery, and (5) the fast-evolving challenges posed by smart phones, tablets, and the electronically stored information (ESI) found on these devices. I. EARLY DATA ASSESSMENT A. Introduction to Early Data Assessment 1. What Is EDA? Early Data Assessment (EDA) means different things to different people. For those in the technical area of electronic discovery, it can mean sampling data; to others, it can mean a quick pass over the data in order to see what is there (i.e., a first review). Regardless of who is defining EDA, everyone agrees it can be a powerful tool for narrowing the scope of data to be preserved, reviewed, and ultimately produced in litigation. After collection of relevant preserved data, EDA helps attorneys narrow the scope of data to be processed or reviewed. It looks at a large set of data early on, so as to help attorneys focus their processing and review of that data. EDA helps attorneys: Triage data by level of importance or relevance. Gain early visibility into the data collected, before processing or review. Improve efficiency for reviewing (or not reviewing) massive quantities of duplicate or near-duplicate documents. EDA is different from Early Case Assessment (ECA). ECA involves analysis of the entire case, including the case merits versus cost effectiveness, not just documents and data that will potentially be the subject of discovery. 1 ECA can encompass fact finding, venue analysis, damages assessment, liability analysis, investigation of opposing parties and counsel, litigation budget forecasting, and more. 1. Eric L. Barnum, An Introduction to Early Case Assessment, 17 PRAC. LITIGATOR, Nov. 2006, at 21.
6 2014] USING TECHNOLOGY IN E-DISCOVERY Why Should I Use EDA? EDA has many benefits: Collection, review, and production: EDA allows for more efficient collection, review, and results in a production. It allows parties to gather more of the responsive material, while reducing the cost of the production by eliminating irrelevant, duplicative, or unnecessary information. EDA assists with: Providing robust reporting and allowing attorneys to slice and dice the data many ways to see patterns. Allowing attorneys to triage the order in which to review data, starting with the most important data or custodians first. Identifying potential custodians or identifying individuals who should not be part of the collection. Determining whether additional collections are appropriate. Gaining a better understanding of key case information (e.g., key ideas, threads, chains of communication, and connections between custodians). Performing keyword analysis and refinement, to ensure a more efficient and effective collection, review, and production. Communications and conferences with opposing counsel: EDA allows an attorney to better communicate with opposing counsel and to adopt beneficial positions that will save the client s time and money. EDA assists with: Facilitating the required discovery conference with opposing counsel pursuant to Federal Rule of Civil Procedure 26(f) and Minnesota Rule of Civil Procedure 26.06, by allowing an attorney to better understand the format and scope of the data. Selecting agreed-upon search terms that will not result in excessive numbers of false hits. Selecting agreed-upon search terms that will adequately identify responsive documents. Defending the search protocol and the party s positions with regard to discovery stipulations and productions. Use of documents for later litigation tasks (e.g., depositions, trial): EDA allows attorneys to more efficiently and effectively identify
7 594 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 key documents that will play a major role in depositions, dispositive motions, and trial. EDA assists with: Identifying words and concepts important to the case in order for creation of effective keyword searches. This can be useful for document production and also for later searches and document organization, such as deposition preparation, summary judgment briefing, and trial preparation. Reducing review costs by eliminating irrelevant documents: Effective searches provide more targeted review, which reduces the scope of the review (by eliminating irrelevant documents) and increases the effectiveness of the review (by successfully identifying important documents). Allowing multiple views of the data, depending on the purpose of the review: For example, some tools allow for one platform with similar interfaces for preview and full review. 3. When Should I Use EDA? EDA can be useful in many different contexts. Legal teams often use EDA for litigation, but it can be a powerful tool in many other types of matters. For example: Regulatory matters: To provide a quick overview of the scope of the matter, the types of documents the client possesses, and the key individuals who participated in communications about the subject matter. Litigation matters: To reduce data volume prior to document review, make document review more efficient (by triage or grouping), assist counsel in selecting meaningful agreed-upon search terms, and organize documents for later documentheavy tasks such as deposition preparation, summary judgment briefing, and trial preparation. Internal investigations: To take an early look at data and determine the key players, timing, and patterns of correspondence. Policy audits: To develop a Tickler System, 2 and to understand compliance with internal policies and potential risk. 2. A tickler system can take many forms. For example, a tickler system may
8 2014] USING TECHNOLOGY IN E-DISCOVERY 595 B. Technology Functionalities and Options for EDA There are an increasing number of options for products and technologies. Different technology is appropriate for different cases, as will be described in further detail in Part III. The legal team should consider the size of the case (both in monetary risk/reward and size of the data set) as well as time constraints and other factors when selecting the appropriate technology. This section provides an overview of some key functionalities that can be enormously helpful and cost-saving in the right case. 1. Search and Filtering Technology Searching and filtering tools can be huge time-savers in highvolume cases. Below are descriptions of different searching and filtering technologies that legal teams should consider. Traditional searching: Traditional searching typically uses terms and connectors, proximity, wildcard, and expander searching. These tools can be very useful in EDA. Search queries can be run on multiple fields and can be done by keyword, use, various date options, metadata, and coding fields. These will allow the user to estimate the number of documents that will be generated using different combinations of key words. Stemming, phonic, synonym, related, fuzzy, multiword, and Boolean searches may also be used. Data and evidence bookmarking support categorization and organization. Topic grouping and concept searching: This type of searching uses intelligent technology and complex algorithms to group similar documents by concept or topic. This will allow the reviewer to quickly and accurately evaluate volumes of documents for relevance and responsiveness. This is also a very useful tool when reviewing productions and is a great alternative to traditional keyword searching. Filtering: Filtering can be done by type of document. For example, a filter may identify certain file types, encrypted files, decrypted files, duplicate files, near-duplicate files, provide prompts based on certain time frames (e.g., two weeks prior to a financial reporting deadline). Alternatively, a tickler system may be used to identify at-risk communications, such as communications with certain keywords or between particular groups or individuals.
9 596 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 chains, graphics, sender, recipient, subject line, date range, and source. 2. De-Duplication Many document collections involve huge numbers of duplicate documents. According to some estimates, de-duplication reduces the size of a document collection by approximately fifty percent. 3 There is more than one kind of de-duplication. For example, global de-duplication means that the technology will compare documents collected from all custodians and will retain only one copy of the document. 4 By contrast, custodian de-duplication will retain one copy for each custodian. 5 Near-duplicate document comparison: This technology allows users to compare differences of extracted text, annotations, categories, or reviewer comments between two near-duplicates. Duplicate, near-duplicate, and chains: Different tools can remove duplicates, and group near-duplicates and chains together. De-duplication can be done globally or by custodian, and it can split documents or keep them in families. 3. Generating Reports and Other Analytic Tools Reports and analytic tools can be enormously helpful. An attorney should carefully consider the features and advantages of each type of program before selecting a program for a specific case. Below are a few examples of analytic tools that may be available: Reports: Users can generate reports that provide information about many different categories. Examples include: overall data set size; number of sources; types of files ( s,.doc files,.pdf files, Excel spreadsheets, etc.); data profile; peaks and valleys in volumes of traffic; common subjects; and traffic between specified custodians. Search and filter logs: Users can determine whether the software retains detailed logs of searches or filters run and the results 3. Processing: Metrics, FINDLAW (June 6, 2012), 4. Processing: Stages, FINDLAW (June 6, 2012), /ediscovery-guide/processing-stages.html. 5. Id.
10 2014] USING TECHNOLOGY IN E-DISCOVERY 597 thereof. These historical logs may be useful when a user wants to re-create the results of a previous search. Users should also determine whether the program can generate a user-friendly report of the searches/filters and the results thereof. thread analysis and analytics: Analytics provide users with the power to analyze and interact with their most potentially relevant data by visually displaying who is communicating with whom, when they communicated, and about which topics they were communicating. Early detection of common themes within the data set can be revealed, ultimately allowing document review teams to be more productive and accurate in making decisions regarding responsiveness and privilege. Data dictionary: A comprehensive data dictionary of all words in a data set can be a useful tool. This can enable the user to determine which key terms are important in the review, and provides the option to use this information in negotiations regarding search terms. C. Strategic Considerations for Choosing an EDA Approach and Choosing Technology in Specific Cases EDA can be helpful in nearly every case, but the appropriate cost-effective tools will vary from case to case. This section provides a list of considerations when picking the appropriate technology for a given case. 1. Choosing an Approach Assessment of e-discovery experience and sophistication of case participants: Everyone comes to e-discovery from a different place. This includes the client, the court, opposing counsel, and the legal team performing the collection and review. Choosing who will manage the data assessment: E-discovery like all discovery requires a balance between proportionality/cost considerations and a reasonably comprehensive, defensible effort to locate and produce documents. When choosing the party to collect documents, these cost and competency concerns are particularly important. In-house: Some clients prefer to do data collection in-house. The major perceived benefit is cost reduction. Some companies have extremely sophisticated legal and technical teams, and other companies have virtually no
11 598 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 resources. Things to consider when deciding whether the collection should be done in-house include: o Management; o Overhead/burden; o Technology changes during critical time period; o Infrastructure and document retention policy (e.g., servers, backup tapes, shared drives); o IT/legal team experience and ability; o Repeatability/frequency of need. Outside counsel: Outside counsel may be able to collect and process the documents more efficiently. The major perceived benefit to this approach is to have the individuals who will be guiding and processing the case also oversee the document collection and assessment. The factors to consider for outside counsel are the same as for an in-house collection: o Management; o Overhead/burden; o Technology changes during critical time period; o Infrastructure and document retention policy (e.g., servers, backup tapes, shared drives); o IT/legal team experience and ability; o Repeatability/frequency of need. Vendor: The major perceived benefit to this approach is having an entity that specializes in data collection and management perform the collection and assessment of the data. Things to consider when deciding whether a vendor should do the collection include: o Management; o Cost; o Vendor s experience with similar cases; o Reinventing the wheel ; 6 6. Either a party or a vendor may have inefficient processes that result in unnecessary duplication reinventing the wheel. For example, using a vendor may eliminate duplication because the vendor has established systems already in place that the client would otherwise need to create. In this instance the client would be reinventing the wheel, and it would be more efficient to use a vendor.
12 2014] USING TECHNOLOGY IN E-DISCOVERY 599 o Prior relationship and past history with vendor. Assessment of scope: What does the case need, and what will the case support? Using an expensive EDA tool is not appropriate for all cases. Sometimes all that is needed is a quick look at the data. The team may need to know only the number of documents to be reviewed or the communication networks. This information can be gathered by looking at a few sample s. There are also other ways you may perform EDA when your case does not support an expensive tool. For example, after interviewing custodians of data, you might learn that certain custodians file their electronic documents by project, in which case you may simply gather the documents that the custodian already segregated for the project at issue. Or, you might decide to run some basic searches or sample certain custodians, based upon information gleaned from interviews, to see where you are most likely to find the most relevant documents. Consideration of timetable: Do you have time to use an EDA tool? Depending on the turnaround time you have, sometimes using an EDA tool is simply not possible. For example, if your client must respond to a government subpoena within an extremely tight window, you may not have time to load the data onto the EDA tool, analyze it, and then review it. If time permits, using an EDA tool should start during or after data collection and end as the document review process begins in earnest. 2. Choosing the Right Technology Assessment of data: The volume and type of data (e.g., s, engineering plans, audio files, etc.) greatly influence the tool that one should use. The tool analysis needs to include an assessment of the tool s capabilities. For example: Can the tool handle the data types in your data set? Can the vendor process and provide access to the data set in the timeframe you need? However, if the client has sophisticated retention, storage, or collection capabilities, a vendor may be reinventing the wheel when it attempts to collect, categorize, and search across the client s data.
13 600 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 Cost/benefit of performing EDA: How much processing time/expense will be saved if you can cull the data collected beforehand? How much will the EDA tool cost, and how much time will it save you in review? This analysis needs to include a look into how the data were collected and if you anticipate gaining enough information or reducing your data set enough to warrant the cost. One example that is often seen where EDA does not provide enough of a benefit is when a company is able to do some filtering in-house. When a company is able to pre-cull its data, you may not see enough of a benefit to move forward with EDA. Functionality versus price of EDA options: Does extra functionality make up for increased price? In some cases particularly in cases involving a small number of documents or a small amount of money the additional functionality may not be cost effective. Extra functionality will be particularly useful for cases involving large amounts of documents. The additional cost for the functionality may not be advisable in cases involving few documents or in cases where the parties are anxious to keep costs low (due perhaps to a smaller amount of money at stake). D. Legal Obligations: How Much Must You Disclose to Opposing Counsel About Your EDA Approach (and Do You Want to Disclose Even If It Is Not Required)? 1. Meet and Confer Conferences: What Is Required? What do the rules say? Both the federal and state rules describe topics for counsel to discuss, but they do not require any particular amount of detail in the discussion. 7 The rules state only that the parties should discuss any issues about e-discovery. 8 The conference may address topics such as: A proposed plan and schedule of discovery; 9 7. See FED. R. CIV. P. 26; MINN. R. CIV. P See MINN. R. CIV. P (b), 26.06(c)(3). The court may direct the attorneys to appear for a discovery conference upon request by a party. Id. R (d). The parties must first meet and confer to try to resolve the issues, and the party seeking a conference must file a motion with specific information. Id. 9. See id. R (d)(2); see also FED. R. CIV. P. 26(f)(2).
14 2014] USING TECHNOLOGY IN E-DISCOVERY 601 Any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; 10 Any limitations to be placed on discovery. 11 o The parties must consider the nature and basis of their claims and defenses... ; discuss any issues about preserving discoverable information; and develop a proposed discovery plan. 12 o The discovery plan must state the parties views on several things, 13 including: [T]he subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues. 14 [A]ny issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced. 15 [W]hat changes should be made in the limitations on discovery imposed under these rules. 16 How are these conferences being conducted? There is wide variation. Some attorneys go into incredible detail and bring IT staff; others see it as a mere formality. However, the increasing trend amongst practitioners is to be well prepared to discuss electronically stored information at such conferences, and some courts have scolded parties for not engaging in a meaningful Rule 26(f) conference. 17 Some jurisdictions have 10. See FED. R. CIV. P. 26(f)(3)(C). 11. See id. R. 26(f); D. MINN. LOCAL R. 26.1, /local_rules/local-rules-master.pdf. Before serving discovery, the parties must meet and confer about discovery. FED. R. CIV. P. 26(d)(1). 12. FED. R. CIV. P. 26(f)(2). 13. See id. R. 26(f)(3). 14. Id. R. 26(f)(3)(B) (emphasis added). 15. Id. R. 26(f)(3)(C) (emphasis added). 16. Id. R. 26(f)(3)(E) (emphasis added). 17. See, e.g., Hanwha Azdel, Inc. v. C & D Zodiac, Inc., No. 6:12-cv-00023, 2012 WL , at *1 (W.D. Va. Dec. 27, 2012) (scolding the parties for failing to come up with a meaningful plan for ESI discovery and stating that Rule 26 recognizes the unique problems posed by the discovery of ESI and requires parties cooperate[,].... [and] mandates that the parties meet and confer.... ); Kleen
15 602 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 created requirements for certain topics that must be addressed during the Rule 26(f) conference. 18 Being knowledgeable about your client s electronic records and data can prevent significant headaches and the need to redo discovery productions. It also enables the parties to stipulate regarding what sources of data will not be produced, or to phase discovery so that the most relevant and fruitful sources of discovery are located, reviewed, and produced first, and time and money spent reviewing and producing data that are expensive to retrieve/review and of minimal value can be limited. Aspirational principles: Several sources, including the Sedona Conference, recommend that counsel engage in a thorough Rule 26(f) conference. 19 Both the Minnesota Rules of Civil Procedure and the Federal Rules of Civil Procedure require Prods. L.L.C. v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL , at *19 (N.D. Ill. Sept. 28, 2012) (recommending a collaborative approach that starts early in the case). 18. Some jurisdictions are following this trend by adopting specific requirements that certain topics be covered in the Rule 26 conference. See, e.g., Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information, N.D. CAL., (click on ESI checklist for use during the Rule 26(f) meet and confer process (.pdf) to view article) (last visited on Nov. 21, 2013) (requiring discussion of preservation, custodians, source of data, search methodology, and metadata); Electronic Discovery Committee, [Proposed] Standing Order Relating to the Discovery of Electronically Stored Information, SEVENTH CIRCUIT ELECTRONIC DISCOVERY PILOT PROGRAM 6, (last visited Nov. 18, 2013) (Principle 2.05 on Identification of Electronically Stored Information discusses the requirement that parties discuss de-duplication, keyword searching, filtering, and other topics). 19. THE SEDONA CONFERENCE, THE SEDONA PRINCIPLES ADDRESSING ELECTRONIC DOCUMENT PRODUCTION, at ii (Jonathan M. Redgrave et al. eds., 2d ed. 2007) ( Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party s rights and responsibilities. ); see also, e.g., Scott E. Randolph & A. Dean Bennett, Using the Mandatory Rule 26(f) Discovery Conference to Manage ESI Pays Dividends Throughout Litigation, 54 ADVOCATE (Idaho), Feb. 2011, at 34; David Lender, Don t Dread the Rule 26(f) Conference, N.Y. L.J. (Online) (Feb. 19, 2008), available at LEXIS; Barbara Jean D Aquila, ABA Section of Labor & Emp t Law, Litigation Checklist for an Employment Case, A.B.A (2007), /annualconference/2007/materials/data/papers/004.pdf.
16 2014] USING TECHNOLOGY IN E-DISCOVERY 603 counsel to confer on discovery issues. 20 In the 2006 revisions to Federal Rule 26, the Advisory Committee noted that [w]hen the parties... anticipate disclosure or discovery of electronically stored information, discussion at the outset may avoid difficulties or ease their resolution. 21 The Advisory Committee also stated, Early identification of disputes over the forms of production may help avoid the expense and delay of searches or productions using inappropriate forms. 22 As one court noted, Of course, the best solution in the entire area of electronic discovery is cooperation among counsel. 23 Is counsel required to share search terms? There is no specific requirement that search terms be shared. For the producing party, it may be beneficial to discuss and agree upon search terms. Search terms can narrow the scope of documents to be reviewed, and having the agreement of opposing counsel will help the producing party if it later faces a motion to compel. Counsel should not agree on final search terms until they have done EDA of the search terms to identify false hits or problematic terms. 2. Dos and Don ts of Meet-and-Confer Conferences What to Do Before and at Meet-and-Confer Conferences: Come with a list of technical specifications provided by your litigation support team (or bring a team member!). 24 Discuss whether documents will be produced as native files or TIFF/PDFs. This can vary by document type. For example, some people prefer to produce/receive Excel spreadsheets in native format with intact formulae and produce/receive all other documents as TIFF images See FED. R. CIV. P. 26(f); MINN. R. CIV. P FED. R. CIV. P. 26 advisory committee s note (2006 amendment). 22. Id. 23. William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009). 24. See FED. R. CIV. P. 26, advisory committee s note (2006 amendment) ( It may be important for the parties to discuss those [electronic storage] systems, and accordingly important for counsel to become familiar with those systems before the conference. ). 25. See id. ( Early identification of disputes over the forms of production may
17 604 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 Discuss whether discovery can be conducted in phases, such as starting with a limited number of custodians. Discuss whether the parties can agree on date ranges for discovery requests. Perform EDA prior to the conference, if possible. If not possible, perform EDA before engaging opposing counsel in a dispute about the scope of discovery. It is much more effective to be able to support your arguments with hard numbers. For example, Additional custodians are unnecessary. Limiting the production to four custodians is reasonable because it still yields 60,000 documents. Discuss whether you can agree that certain sources of ESI (such as backup tapes) are not reasonably accessible. 26 Discuss a claw-back agreement for inadvertently produced documents. Don ts of Meet-and-Confer Conferences: Don t assume that the discovery conference is a routine event that requires no preparation. This is an opportunity to save time and money for your client, and should be used to your client s full advantage. Don t assume that time spent preparing for the Rule 26(f) conference is wasted. Preparation and planning can be well worth the time and client s money, particularly time spent identifying technical specifications and coming up with a proposed list of initial custodians. A small amount of time planning can save large amounts of money in the collection, processing, review, and production aspects of the case. Don t agree to search terms without running EDA. It may be necessary to agree on tentative search terms, but EDA is necessary to ensure that you do not agree to inappropriate search terms. For example, parties searching for s about a specific type of transaction (e.g., accounts receivable ) may inadvertently select terms that appear in signature help avoid the expense and delay of searches or productions using inappropriate forms. ). 26. See id. R. 26(b)(2)(B).
18 2014] USING TECHNOLOGY IN E-DISCOVERY 605 blocks (e.g., Accounts Receivable Manager ), leading to huge numbers of false hits. If the data have already been collected, perform EDA and develop a list of potential terms prior to the Rule 26(f) conference. If collection happens later, follow up with counsel after EDA has been performed to finalize the search terms. Don t ignore the technical requirements. This is usually a simple and noncontroversial topic at the beginning of litigation, but failure to identify technical specifications can lead to huge costs later in the litigation. For example, it can be hugely costly and time consuming to convert data that are in the wrong format after the fact. Don t assume that counsel must agree on every issue at the initial Rule 26(f) conference. 27 Counsel may be able to agree on a few search terms and custodians at the initial conference and can confer later if a second phase of discovery is necessary. There may be ongoing discovery conversations if the case warrants it. Don t forget to do anything on the DO list! 3. Obligation to Use Adequate Search Terms. Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI s custodians as to the words and abbreviations they use, and the proposed 27. Opposing counsel may raise an issue that requires further investigation. For example, opposing counsel may request that a certain custodian be included in the collection and production. It may be necessary to confer with your client to identify that custodian s role in the facts underlying the litigation before further discussing the issue. If the opposing attorney is mistaken about the employee s role, he or she may agree to exclude the employee from the collection. Or, the attorney may learn that the employee had a key role, and may agree to collect and produce the documents. Likewise, attorneys may need additional time to further investigate issues such as: unexpected document formats, unexpected storage formats, or appropriateness of search terms. When unanticipated issues arise, or the attorneys are unable to come to an agreement, it may be wise to postpone a final decision and agree to gather additional information and address the issue in a later conversation.
19 606 WILLIAM MITCHELL LAW REVIEW [Vol. 40:2 methodology must be quality control tested to assure accuracy in retrieval and elimination of false positives. It is time that the Bar even those lawyers who did not come of age in the computer era understand this. 28 There are very few cases dealing with the adequacy of search terms, but courts are showing increasing interest and sophistication in the document collection and review process. Reasonableness of requested search terms: Search terms must be reasonable for both parties. They must be both reasonable in number and reasonably calculated to retrieve relevant information (beneficial for the party requesting production), and cannot be unreasonably broad or burdensome (beneficial for the party doing the production). 29 Expert testimony and competency of court and counsel to determine whether search terms are reasonable: In extreme cases, it may be necessary to have an expert testify about the reasonableness of search terms. 30 Use of EDA information to support litigation positions: A party must be able to defend its selection of search criteria or support its objections to an opponent s discovery requests. 31 Use of EDA 28. William A. Gross Constr. Assocs., 256 F.R.D. at See id. at 135. Parties must confer and agree on search terms, with input from custodians about likely search terms. 30. See United States v. O Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) ( 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. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. (citation omitted)). 31. See Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., L.L.C., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010) (noting a party s obligation to assess the accuracy and validity of selected search terms ), abrogated by Chin v. Port Authority, 685 F.3d 135 (2d Cir. 2012); Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D. Md. 2008) (chastising a party for fail[ing] to demonstrate that the keyword search [it] performed on the text-searchable ESI was reasonable ). A party (and its attorneys) is obligated to either object or respond to properly issued discovery requests under Rule 26. If a party performs an inadequate collection or search, the party may be sanctioned for improper discovery conduct. See, e.g., Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B
20 2014] USING TECHNOLOGY IN E-DISCOVERY 607 can be used to prove that discovery requests are unduly burdensome when objecting to a motion to compel. 32 E. Additional Sources of Information Relating to Early Data Assessment 1. Judicial Standing Order M10-468, In re: Pilot Project Regarding Case Management Techniques for Complex Civil Cases (S.D.N.Y. Nov. 1, 2011), available at /show.php?db=notice_bar&id=261. BARBARA J. ROTHSTEIN ET AL., MANAGING DISCOVERY OF ELECTRONIC INFORMATION: A POCKET GUIDE FOR JUDGES (2007). SEVENTH CIRCUIT ELECTRONIC DISCOVERY PILOT PROGRAM, 2. Bar Association John M. Barkett, The 7th Circuit E-Discovery Pilot Project: What We Might Learn and Why It Matters to Every Litigant in America, A.B.A. (2011), available at 3. Academic MICHAEL R. ARKFELD, ARKFELD ON ELECTRONIC DISCOVERY AND EVIDENCE (2d ed. 2007). (BLM), 2008 WL 66932, at *8 (S.D. Cal. Jan. 7, 2008) (issuing sanctions to party and its counsel in part for inadequate document search), vacated in part, No. 05CV1958-RMB (BLM), 2008 WL (S.D. Cal. Mar. 5, 2008); Zubulake v. UBS Warburg L.L.C., 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (granting former employee s motion for sanctions against employer for untimely production of some documents, failure to produce other documents, and failure to preserve relevant evidence). 32. See Victor Stanley, Inc., 250 F.R.D. at 260, 262 ( Selection of the appropriate search and information retrieval technique requires careful advance planning.... [T]he party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented. ).
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