Electronically Stored Information: Focus on Review and Strategies
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1 Procrastinators Programs SM Electronically Stored Information: Focus on Review and Strategies Gavin Manes, Ph.D., Avansic Course Number: Hour of CLE December 20, :20 12:20 p.m.
2 Gavin W. Manes, Ph.D. Chief Executive Officer (918) Gavin W. Manes, a nationally recognized expert in digital forensics, founded Avansic in 2004 to provide e-discovery services to an ever-increasing number of members in the business and legal communities looking to protect their companies and clients from exploitation. As Chief Executive Officer of Avansic, Manes ensures the efficiency of the company, as well as the fulfillment of the mission in conjunction with business development and expansion into new service areas. Manes holds five National Information Assurance Education and Training Program federal information assurance certifications from the Committee on National Security Systems and the National Security Telecommunications and Information Systems Security Committee. He also earned his Certified Information System Security Professional certificate ISC2. In addition, he briefed the White House, National Security Council and the Pentagon on information security. Manes has served as an expert witness for many legal proceedings through courtroom testimony, depositions and consulting with attorneys on data preservation issues. To maintain his expert standing, Dr. Manes continues to publish in peer-reviewed journals, present at a variety of conferences and symposia, and give classroom lectures at universities. His full curriculum vitae CV can be found here
3 ESI: Focus on Review and Production Strategies Dr. Gavin W. Manes, President and CEO
4 About Us Avansic E-discovery and digital forensics company founded in 2004 by Dr. Gavin W. Manes, former Computer Science professor Scientific approach to ESI processing Strong background in academics and research Based in Tulsa, OK with numerous regional offices Gavin W. Manes, Ph.D. President and CEO Nationally recognized expert in e-discovery and digital forensics Frequently published in peer-reviewed journals, magazines, and proceedings Presents to attorneys and professional organizations Serves as an expert witness Intro Template
5 Agenda The Problem The Challenge Solutions Intro Template
6 The Problem Too much ESI Any type of ESI Files s Application Data Other Sources of ESI Computers, tablets, thumb drives, cell phones, ipods Digital cameras, faxes, printers, automobiles Intro Template
7 Communication and Vocabulary Good communication is critical jargon is dangerous Technical terms can be defined MANY different ways Intro Template
8 ESI Rules FRCP Rules Discoverable documents Planning for discovery Exchange protocols Burden and cost State rules 2/3 states have rules Case law Intro Template
9 Reactions Intro Template
10 Key Decisions Zubulake v. UBS Warburg (2004) landmark case Victor Stanley, Inc. v Creative Pipe, Inc. (2005) - $1M in sanctions and jail US v. O Keefe Equity Analytics Mancia v. Mayflower Pension Committee - defining the litigation hold Intro Template
11 A Solution Litigation habits and customs learned in the days of paper must be revisited and revised. The culture of bench and bar must adjust. - Hon. Lee Rosenthal US District Court for the Southern District of Texas, Chair of the Standing Committee on Rules of the Judicial Conference Intro Template
12 ESI Processing Intro Template
13 Production Format Native files, TIFF, PDF Loadfile for common review software Delivery Online (repository or secure file transfer) DVDs or hard drives Focus on Production and Searching 11
14 Production Tips Requesting party must specify during the pretrial conference Difficult to change once the process has begun If native files are requested, can mean acquiring entire computers The end of processing is the wrong time to decide production format If you ve reviewed TIFF and they asked for native file, you may have to review again Maintain a copy of what you produce Includes labeling, chain of custody, and storage How long? Focus on Production and Searching 12
15 Page Counts Document Type Average Pages/Doc Average Pages/GB Average Pages/MB Microsoft Word files 8 64, files , Microsoft Excel files , Lotus files , Microsoft PowerPoint files 14 17, Text Files , Image Files , Focus on Production and Searching 13
16 Document Review Most expensive part of e-discovery Most time consuming part of litigation Before you begin, answer: What? Who? How? Focus on Production and Searching 14
17 Review: What What document types will be reviewed? What document volume will be reviewed? What am I trying to find? Responsive documents to produce to opposing counsel Privilege or confidential The Smoking Gun Focus on Production and Searching 15
18 Review: Who Who will do the review? How many reviewers are needed? What skillset do those reviewers need? Who will validate the review? Quality control Who will receive the results of the review? Your litigation team Expert witnesses Opposing counsel Focus on Production and Searching 16
19 Review: How How will we identify documents of interest? Search Custodian Concept How will we organize documents? Tagging and coding Foldering Focus on Production and Searching 17
20 Review: How How to share documents? Shipping boxes Internal systems Collaborative online review How will we manage the project? Churn and burn (paper) Linear review line by line (electronic) Managed review focused on project management and advanced strategies (batching, search filtering, etc.) Focus on Production and Searching 18
21 Paper vs. Electronic Paper Review Limited options Read everything Difficult to organize larger sets Electronic Review Several options (in-house, hosted online ) Ideal for medium to large document sets Using the platform correctly can create huge efficiencies Project management Collaboration Focus on Production and Searching 19
22 Electronic Review Features Scalability No limit on data or users Quickly add data or users User-level feature security Granular security administration Several types of users Avoid the all or nothing mentality Focus on Production and Searching 20
23 Online Review Features (continued) Collaboration Maintained within the system Searchable Tracking features Reports Project Management Task level reporting User level reporting User assignment Project metrics reporting Focus on Production and Searching 21
24 Search During Review Most review tools offer strong search features to refine and reduce the data during review Simple searching (easy) Relational searching (difficult) Contextual searching (complex) Concept searching (next generation) Focus on Production and Searching 22
25 Language of Searches Searches are written in their own unique languages (syntax) Boolean Operators Context and Proximity Operators Relational Operators These operators allow for complex search combinations Focus on Production and Searching 23
26 Search Syntax Different review tools use different search syntax Some let you use & or + for and ADJ is also known as w\1 Not is also known as > or < or! % and Like often mean same Focus on Production and Searching 24
27 White Space and Noise Words Noise words Common words excluded from indexing in search or review tools In exact phrase searches, these words are treated as white space and not included in hit results it appears likely that a letter of credit is needed = appears ADJ1 likely ADJ2 letter ADJ1 credit ADJ1 needed Focus on Production and Searching 25
28 Concept Searching Searching documents based on what they are about Language algorithms read the concept of a document Find related documents that don t contain the actual search terms Used correctly, you can quickly get to the core documents you want to review first Focus on Production and Searching 26
29 Clustering Tool types Black box More like this or find similar Widely-known algorithms Potential Workflows Filter, then cluster, review sample set based on those clusters, then apply that sample set coding to the remainder of the set Send small data set through clustering to determine search terms And more. When is it useful? With or without online review component Cases with 10,000+ documents Focus on Production and Searching 27
30 TAR not HAL Technology Assisted Review Predictive coding Is it ethical to avoid technology to reduce review? Huge document sets NARA case: 200+ million government s BP case: 1+ billion pages Focus on Production and Searching 28
31 De-Dupe vs. Near-Dupe De-duplication removes exact copies from the review set using scientific means Files: use a hash to determine if two documents are the same s: combination of data elements (metadata) or a unique identifier from the e- mail server Near-duplication (near-dupe) groups documents by context Compares the body of a document and accepts minor differences Identify like documents for review Should not be used to automatically eliminate Focus on Production and Searching 29
32 Threading A collection of s that all originate from the same initial Includes all forwards, replies, CC s and BCC s Focus on Production and Searching 30
33 Conclusion Plan ahead for both production and review Reasonable expectations for turnaround Project management is key Save time and money Eliminate duplicate review Use technology to your advantage Sophisticated software exists Used properly, it can ease the burden of e-discovery Focus on Production and Searching 31
34 avansic.com Corporate Office Mid-Continent Tower, Suite South Boston Avenue Tulsa, OK Gavin W. Manes, Ph.D. Focus on Production and Searching 32
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