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Answering Your Questions on Document Review

By Barry Schwartz and Lisa Prowse 

Last month, we partnered with Emily Cobb from Ropes & Gray, LLC and the team at ACEDS to host a webinar covering the ins and outs of successful document review. It was a thoughtful, helpful discussion on strategies and tips for improving the document review process, and we covered a lot of ground during the one-hour program, from modern approaches to managed review, technology-assisted review (TAR), putting together a review team and more.

Attendees posed a lot of great questions, and we wanted to share our answers here and keep the discussion going... 

1. What is the average rate of review, per reviewer, on an hourly basis? 

It all depends on the complexity of review protocol, really. Reviews with simple protocol, such as questions that can be answered by an easy “yes” or “no,” will go very quickly, but if your review project is highly complex, then the review rate would be slower. 

For example, the average rate of review for emails only, if you’re only coding for responsiveness, could be anywhere from 70-80 documents per hour. However, if your reviewers are sifting through formulas in spreadsheets, you can expect them to spend a lot more time on each document, not only to review the information but to open the document in its native software. While some review platforms provide a decent spreadsheet view, the best way to view all the information in a spreadsheet is still to open it in Excel or Google Sheets. That means a reviewer may only look at 20-30 documents in an hour. 

In general, assuming that reviewers are looking at a mix of documents that include some spreadsheets, most reviewers average 40-50 documents per hour during review. 

2. When a law firm associate is overseeing an eDiscovery/managed review project, what is the role of the project manager at the vendor or corporate client? 

Put simply, the role of the project manager is to work with a law firm associate to keep him or her informed on the status of each step of the project, including document collection, processing, search results, review and production. In addition to providing reports and metrics on the case, the project manager is also there to troubleshoot any issues or facilitate things like complicated search term requests. 

A project manager at the corporate client would be in a similar position. There’s usually a point person at the corporation to take the lead in facilitating data collections. During the webinar, our colleague and fellow presenter Emily Cobb pointed out that it’s the law firm’s neck on the line in terms of what’s reported out. As such, it’s the law firm associate that has the final say on most substantive issues. 

We also did a previous webinar on the role of the eDiscovery project manager, which goes more in-depth, and can be seen here. 

3. Does outside counsel need to do 100% of the quality control of documents reviewed by contract attorneys or the managed review vendor? 

In a perfect world, someone may quality check (QC) every single document. But in real life, the QC process is not 100%. It typically involves random samplings throughout the review process. If the review is being handled by a vendor’s review team or contract attorneys, they usually have their own QC process, in addition to what outside counsel will do. 

We suggest that the samplings happen more often and are more encompassing at the beginning of the process, looking at the results on an individual reviewer basis to get a sense of how accurately each person is coding. Also look to see if any problems are widespread, which could mean that the review protocol was not properly explained or understood. 

After you are comfortable with your reviewers, the QC process should include random samplings of the entire document set. 

That said, there are certain documents that we do recommend have a 100% review. At BIA, for example, we always make sure there is a second set of eyes on all documents coded as privileged or “hot.” 

It’s also good to look at overturn reports, which shows when document coding was overturned by the QC person. If there are patterns there – such as certain types of documents that get changed often, or if one reviewer’s coding calls are overturned more regularly – you can gain insight into any potential issues and make adjustments as needed. 

4. How has the quality control process matured over time with the "modern" approach (as described in the webinar)? How can we best leverage technology to track errors, etc.? 

 Technology now allows us to more easily locate items that need to be quality controlled. In the past, we would have had to go through the entire document review process before there were insights to pull. Now, we can glean insights, such as specific areas of documents that need to be quality controlled, easily and quickly during the process. 

5. What kind of supervision do you give to a first or second year associate managing an eDiscovery/managed review project? 

We do give more training and support to people who are new to the process. We see that as part of what we do. It’s worth it to both us and our clients to make sure an associate – and everyone involved – is comfortable with how we work and the proven processes that have been established. We don’t want anyone to fail. 

6. Why do firms not utilize eDiscovery staff attorneys more? 

This is an interesting question. Before BIA, I (Barry) worked at a law firm that managed document review projects with more than 160 contract attorneys on multiple projects. What we found was that having so many contract attorneys on multiple projects kept us from building institutional knowledge for a case or client. We changed that process to employ 10-11 staff attorneys and recruited out of our existing talent pool of 160+ contract attorneys. 

Staff attorneys cost less because they’re not on the partner track at a firm, but they still bill higher than contract attorneys – so there are two sides at play. But in general, staff attorneys build cost-effective institutional knowledge, and they provide consistent coding.

That’s the same philosophy that we use at BIA with our Managed Document Review Services team, which provides the benefits of staff attorneys – including being cost-effective and maintaining institutional knowledge – with the ability for our clients to use our attorneys as needed, like one would with a contract attorney review team. 

7. Are there any quality issues with the per-doc model's incentive to get through review quickly? 

BIA uses a pricing model for review of billing per document versus per hour. We touched on this somewhat during the webinar, and it is discussed in more depth here. One big reason we have embraced this pricing model is because speed should not be the main goal of review. Review must be done accurately, or else, regardless of how quickly it was done, it would have to be done again. At BIA, our per-doc model of review allows for reviewers to take the necessary time to code documents correctly the first time, and it includes our comprehensive quality control process. 

8. If the other party does not specify format can you produce in the format you deem reasonable? 

Per the federal rules, the answer is yes. However, what one side deems reasonable isn’t necessarily what the other side will agree upon. It’s good to confirm – more than once – what the specified format will be, just to avoid any back-and-forth in court. It’s not worth the money or time on either side to argue about format. 

9. How do you measure, monitor and track productivity and quality? 

This is a good sum-up question. At BIA, we look at each individual reviewer’s rate of review (documents per hour) and then measure speed, accuracy, difficulty of review material, amount of errors per set and time spent reviewing. Conducting these measurements gives us a good indication of how the review is going and points out areas for improvement. 

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Thanks to all who joined us for our recent webinar. And if you missed it, you can check it out here. Stay tuned to our blog for more insights into eDiscovery, and look for our next webinar with ACEDS in January 2018!

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Globalization Speeding Up eDiscovery Adoption, But a Long Road Lies Ahead in China

by Adam Feinberg

In the United States, the eDiscovery market has grown quickly over the past decade – both because of the ever-growing amount of litigation and the fast transition of most businesses to digital-only work. But outside of the U.S., and specifically in Asian countries, eDiscovery is not nearly as common.

Will these nations see the same eDiscovery boom in the near future?

Rhys Dipshan recently published a Legaltech News article covering some interesting highlights on adoption in Far East markets. Overall, the consensus seems to confirm that eDiscovery will continue to grow.

However, when it comes to China specifically, while the eDiscovery market may continue to grow, there will still be difficulties with stored data – specifically how it will be used in U.S.-based cases. Here are a few things to consider when working a U.S. case involving a company in China:

Data Privacy Networks – China has very heavy restrictions on the internet, including where you go, what you can see and how much (or little) privacy users have on the internet. Chinese officials are even requiring telecom companies to eliminate individual user access to VPN software except back to company servers. These issues with data privacy make it incredibly difficult to do things like collect data remotely or host a document review site that attorneys in both the U.S. and China could access, often forcing costly relocation of discovery teams to China. We have developed solutions for many of these issues, but even with those solutions in place, we always caution clients that collecting data from China can be unpredictable at times and to plan for and expect the unexpected.

Encrypted Data Transportation – If data can’t be collected remotely, it needs to be forensically collected to a hard drive and encrypted. The hard drive then needs to be shipped or carried out of the country. However, there has historically been great difficulty in getting encrypted data in and out of the China. More than 40 countries, including the U.S., agreed to the Wassenaar Arrangement, which allows for encrypted device transport across national boundaries, under a “personal use exemption.” China is not a part of this arrangement.

In fact, our firm has had its own troubles with this technology barrier. In a recent case, a forensic collection resource was stopped at an airport on the way back from China to Singapore and had his collection hard drives confiscated for a short time, which contained encrypted data storage related to a legal matter. When he arrived back at his office he found that Chinese officials had erased the content of both drives.

Culture Differences – Japan is also a focus of Dipshan’s article. It has a long history of delivering goods and services to the West and, as such, has extensive experience dealing with the American and European legal systems and understands and can better accommodate our forensic and discovery needs. Japan also happens to be a participant in the Wassenaar Arrangement. The same could be said for South Korea.

In China, this long history of adoption is not present, and as time has progressed, China has become more locked down in terms of technological access. More difficult than the obvious language barrier, Asian culture is also firmly rooted in the concept of honor. Since the eDiscovery can unearth questionable or dishonorable actions, potential custodians can see the collection of data for litigation as a personal attack on one’s individual honor.

Regardless of these obstacles, Legaltech News makes the point – with which I agree – that as more and more U.S. companies do business in China, the more litigation there will be, which should spur faster eDiscovery adoption. Globalization already contributes to changing regulations in foreign countries, and as the world becomes more connected, so will the need for electronic discovery. That said, you should always consult local counsel who should be well versed and schooled in local privacy, data transfer regulations and law as well cultural differences.

A fuller version of the article appears on Relativity’s blog: part one and part two.

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How to Have a Successful Document Review – Every Time

BIA will provide expert tips during ACEDS webinar on Sept. 26

By Lisa Prowse and Barry Schwartz

The document review phase of the eDiscovery process can be a big expense in terms of both time and costs. It often becomes quite confusing too, with various options proposed to solve the “review problem” in different ways, from using contract attorneys or technology-assisted review (TAR) to outsourcing the work to low-cost foreign providers and more. While such things may factor into helping control and reduce the review process costs, none of them are a “magic pill” in and of themselves, especially when viewed in a vacuum.

The problem is often further complicated when document review is seen as a stand-alone process, apart from the entire electronic discovery reference model (EDRM). That approach fails to leverage the knowledge gained not just in earlier phases of the eDiscovery process, but from related or prior matters too. The most successful document review projects rely on everything that happened during the previous steps of the EDRM to assure a quality, cost-effective result.

To truly address the “review problem”, every company or law firm should examine all of the potential solutions, determine which will work best for their particular needs and data types and ultimately develop a standard eDiscovery process that becomes the standard approach for their cases. It’s no secret in business that developing standard, tested and reliable processes helps control costs, increase quality and ensure success. The eDiscovery process should be subject to the same evaluation.

At BIA, we help our clients create a customized “eDiscovery playbook” – a comprehensive outline for the entire process, with protocols governing everything from legal holds through production and delivery. The playbook also ensures document reviews are streamlined and efficient, so even though every review has different needs and requirements, there is an overall, consistent approach.

Every piece of the eDiscovery process – information management, technology, project management and more – has an important part to play to ensure that the time and costs spent on document review are minimized.

Want to learn more about how you can conquer the document review process? Here’s your chance!

Join us on Tuesday, September 26 for an ACEDS-hosted webinar entitled, “Document Review: The EDRM’s Final Frontier.” During the informative session, we will be joined by Emily Cobb from Ropes & Gray to discuss best practices for document review. We will cover such topics as: 

eDiscovery roadmap preparation

Data and production protocols

Defining and working with search terms

Predictive coding usage (including TAR, CAL, AI, etc.)

Choosing the right blend of technology and people for each unique review

And more!

More information is below. Register today by clicking here.

What: Webinar - “Document Review: The EDRM’s Final Frontier” 

When: Tuesday, September 26, 2017, 1-2 PM EST 

Who: Panelists include: 

Emily A. Cobb, Esq. – Senior Attorney, Ropes & Gray

Barry Schwartz, Esq., CEDS – VP, Advisory Services, BIA

Lisa Prowse, Esq., CEDS – VP, Legal Services & Document Review, BIA

Hosted by: ACEDS

If you’d like to learn more about how to approach, plan for and execute a successful document review, don’t miss this free webinar!

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BIA: Pioneering eDiscovery for 15 Years (and counting) – Part 2

By Brian Schrader

In part one of this blog, we looked at BIA’s journey to where it is today. If you missed it, you can read it here. 

Approaching eDiscovery Services differently than most

The technology we developed over the years allowed us to create efficient, comprehensive eDiscovery services that others just couldn’t match. We set about leveraging that technology, along with the knowledge and insight we had gained, to transform eDiscovery from a chaotic, transactional disruption into a standardized, efficient and everyday business process.

Early on, we recognized that even when corporations had multiple litigations pending, they were still treating each litigation as an entirely new process. They were repeatedly performing data collections on the same custodians and reviewing the same documents in multiple cases. In one case, I recall an employee who had his computer taken for forensic imaging nearly every month over a six-month period, all in relation to different lawsuits.

Companies, law firms and even other vendors were reinventing the wheel on each new eDiscovery project. It didn’t take us long to realize that technology was only part of the answer to the industry’s woes. It was time for a wholistic approach that took off the blinders and looked at creating solutions that could be leveraged across matters.

To combat the chaos, we developed an enterprise approach to eDiscovery. We built features such as data reuse into TotalDiscovery as far back as 2004. On the services side, we started to work with our clients to create standardized workflows, develop defensible processes and reuse everything we could at every possible step, from collected data to attorney document review and coding work product.

We helped our clients create detailed, written plans with workflows and checklists to ensure every matter was treated consistently. We helped them see that by not thinking of eDiscovery as a reactionary process, but instead as something to prepare for ahead of time, not only could we eliminate the chaos and disruption that came with the traditional approach to eDiscovery, but we could truly tame the beast. Costs would become entirely predictable, not to mention much lower. Risks could be practically eliminated. In short, order could finally reign over the entire workflow process.

We used that same approach when, in 2008, we filled in the last gap in BIA’s offerings by creating our Document Review Services team. Instead of hiring temp contract attorneys on an as-needed basis as other vendors did, we hired a dedicated core team of full-time attorneys and opened a document review facility in Michigan. We knew from experience that a dedicated, full-time team of professionals working for clients on matter after matter would increase efficiencies and accuracy, save time and money and provide many other benefits that the traditional approach simply couldn’t beat. Even the most skeptical of clients became quickly convinced.

We have since brought the lessons and much of the same approaches to law firms seeking to likewise standardize their eDiscovery processes. From dedicated project managers to comprehensive systems and expert workflows, we have transformed the eDiscovery services tradition of chaos and created the most efficient, effective and professional eDiscovery services team in the industry.

How the industry has changed in those 15 years

We’ve seen significant changes in the industry over the past 15 years, with one of the biggest being that attorneys have a better general understanding of and communication about eDiscovery’s terminology, technologies and workflows. This may be the most crucial element in the industry’s growth. Now, I’m sure some of this is attributable to generational changes, as younger attorneys were born into a world in which technology is taken for granted. But having people talk knowledgeably about eDiscovery, and demystifying it in the process, has unquestionably made everything else much easier.

We’ve also seen the data collection process transform. Before we developed DiscoveryBOT, even we relied on forensic hard drive imaging, but today we perform targeted, remote collections in a fraction of the time. Data processing engines are also more powerful, functional and scalable than ever before. Early processing solutions were little more than automated TIF converters, while today they are often powerful data analytics platforms. And as data sizes grew, processing capabilities had to increase to handle the ever-increasing volume of data.

In the early days, culling data and early case assessment didn’t really exist except for date ranges and basic keywords—and not all systems even supported that. Today, there are much more effective technologies, methods and protocols that help eliminate useless data even earlier in the process, which greatly reduces the cost of eDiscovery.

Most of the original review tools had a database, a document viewer and some tagging capabilities, but today’s tools have analytics, robust back-end databases, technology-assisted review (TAR) technology, review team management functions, performance metrics, QA processes and document production modules.

Fifteen years ago, people were paying hundreds of dollars per hour for document review. It was first revolutionized by outsourced contractors and eventually by TAR solutions. Today it’s about 75-90% cheaper, and thanks to having more people dedicated exclusively to eDiscovery, better training and better tools, the work product is far superior.

While those tools have made eDiscovery significantly easier, some changes have made it more complex, such as the explosion in data sources. Back in the day, identifying sources was pretty simple— there were primarily computers, servers, backup tapes and the occasional odd archive, legacy or other system. Today, most custodians have a plethora of data sources to consider, many of which might only be known to the custodians themselves. A defensible approach requires more thought, investigation and understanding of the custodian’s daily work than ever before.

And with more data sources comes much more data. When we started in 2002, the most common hard drive size was 20GB or 40GB, and most users had around 1GB of data or less. The occasional user might have 10GB, but those were the outliers. Today, it’s not unusual to find a custodian with 50GB, 100GB or more of data. That increase in data size has probably been the single largest factor in pushing every innovation. It has led to more targeted collections, better culling, lower prices, outsourced review—and most notably—technology-assisted review technology. None of that likely would have happened if the volume and demand didn’t drive everyone to focus on how to cut costs—from processes to technology to analytics and TAR.

How BIA is different than what we originally envisioned

BIA has grown up a lot since its start in 2002. At the beginning, we were a small group of people in a three-room office trying to create a better solution. Today, we’re a national company, with offices across the country and over 50 employees, even after TotalDiscovery was spun off into its own company.

If you look at our history, it actually follows the EDRM. We started with creating better solutions for identifying and preserving data, expanded into data collections, then data processing and ECA, then to review hosting and finally to developing our own very effective approach to attorney document review. At each step, we didn’t look to replicate what others were doing. We were, and still are, constantly developing a better way.

BIA was founded as a software company, and we developed some incredibly powerful, cutting-edge solutions. But we came to realize that great eDiscovery technology must be matched with excellent eDiscovery services for clients to realize the best value, which is why we have grown BIA’s eDiscovery Services to cover the entire EDRM.

So, what do we expect in the next 15 years…

Looking ahead, we see a stronger convergence of eDiscovery, information governance and cybersecurity, which makes sense as we try to streamline how we work with data while we protect it from increasingly sophisticated digital threats. We’re also seeing an increased usage of AI and improved analytics and technology, which will give us better insight and intelligence from the data we have.

Here at BIA, we’re working to make eDiscovery more of an automated process to yield greater efficiencies and cost savings for our clients. We don’t always know what lies ahead, but as our past can attest, we’re always up for a good challenge, and we are always striving to be out ahead of the curve. If there’s one thing we can be sure of, the best is yet to come!

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BIA: Pioneering eDiscovery for 15 Years (and counting) – Part 1

By Brian Schrader

As BIA celebrates its 15th anniversary this year, we’re looking back on the company’s history and how the industry has changed—and what a ride it has been.

The impetus behind BIA

The foundations of BIA were planted in the late 1990’s, when BIA’s founders were working in the areas of litigation, information technology and computer forensics. Drawing on our diverse backgrounds, we shared our experiences and eventually coalesced around a common belief: Discovery of data from computerized systems was unnecessarily complex, burdensome and costly, and somebody needed to fix it (the term eDiscovery hadn’t yet entered the popular lexicon).

So, in 2002, we formed BIA with the goal of fixing those problems. Our focus was clear: Leverage the newest, best technologies to create better, more efficient discovery tools and processes. We were so focused on creating solutions that, even before we settled a name for our new company, we had identified and named the first solution we’d create: DiscoveryBOT.

Along our journey in the years following, DiscoveryBOT evolved to become a core part of the now independent TotalDiscovery platform, and BIA grew to become a premier, end-to-end eDiscovery solutions provider.

Creating powerful eDiscovery solutions

One of life’s indisputable truisms, whether building a skyscraper or inventing new eDiscovery software and solutions, is that a quality foundation is the most important element. Thus, we knew we had to focus first on the foundation of any eDiscovery process: the defensible, reliable identification and collection of data. That’s where the entire process starts, and if not done properly, it can contaminate and destroy the reliability and defensibility of every step that follows.

Even today, more sanctions derive from the failure to properly and defensibly identify and collect data than from any other action. And while the industry only recently has focused more on the left side of the eDiscovery Reference Model (EDRM), we knew from our first steps that the best way to avoid sanctions or any other problems in the eDiscovery workflow was to ensure that the entire process was grounded in a solid foundation. If it was, then any mistakes along the way could always be resolved by going back to that solid foundation. In short, it would make any eDiscovery workflow all but bulletproof.

In the early days of eDiscovery, the prevailing data collection options were hard drive imaging, which involved costly, disruptive, usually onsite full-disc forensic imaging originally designed for law enforcement, or risky manual data copying using whatever tools or methods the employee or an IT resource had available (often resorting to meta-data annihilating drag-and-drop copying). It was a choice of extremes, with no reasonable alternative, but we were about to solve that.

Enter DiscoveryBOT, the first defensible, targeted and remote-capable data-gathering technology specifically designed for legal matters and internal investigations. With DiscoveryBOT, collections for the first time could be targeted at user data, eliminating the unbridled waste that came with traditional forensic imaging. Over the years, DiscoveryBOT would be used to collect untold petabytes of data from custodians and resources in more than 50 countries spread across six continents, saving incalculable hours and dollars along the way. And while DiscoveryBOT has matured over the years, its core functions are much the same today—showing how far ahead of its time it was then and is still today.

Once we had created a better way to identify and collect data, we needed a way to process and analyze it. For several months, we tried the eDiscovery data processing solutions available at the time, even becoming quasi designers and alpha testers for some. But those platforms were all built as bolt-on products by companies whose main products were designed to scan and copy paper documents. They were all trying to fit round pegs into square holes—and it didn’t work. Frustrated, we decided to build our own data processing software, which we released in 2004 as TotalDiscovery. While TotalDiscovery could ingest data from just about any source, it was designed from the outset to work especially well with DiscoveryBOT.

Over time, we combined the data collection capabilities of DiscoveryBOT with the data processing capabilities of TotalDiscovery, added legal hold, custodian questionnaires, culling, early case assessment (ECA) functionality and more to create a behind-the-firewall hardware and software solution we named Solis™ – a system designed to give corporations true control over their eDiscovery processes and a new peace of mind that the rampant risks and costs of the past could now be controlled.

Not long after we introduced Solis, the cloud was born, and we immediately saw the benefits of moving Solis to the cloud. A fully cloud-based solution would eliminate upfront capital expenditures and bring a level of capacity, scalability and worldwide footprint that only the cloud could. It would be the next evolution in eDiscovery.

We were embracing again the ideals on which BIA was founded—to leverage the newest and best technologies to create better, more efficient solutions. We reconfigured Solis for the cloud and re-introduced it, now rebranded as TotalDiscovery. For the first time, anyone could deploy, in mere minutes, a truly comprehensive eDiscovery solution, anywhere in the world, without having to deploy a single server or install a single software program.

Shortly after we released TotalDiscovery, an event happened that displayed the true power and utility of what we had created in a most remarkable way. A client called in a near panic, needing to expedite a data collection in connection with a large M&A second request. The resource had been accidentally overlooked, and the deadline was fast approaching. Not all that unusual of circumstances, sure, but then the other shoe dropped.

The data was sitting on a computer, which was sitting on an oil rig, which was located off the coast of Nigeria. The client was concerned that it could take days if not weeks to get someone in the country and ferried out to the rig. Once again, enter TotalDiscovery. Long story short, the rig had an internet connection, and within a few hours, the data was defensibly collected, processed and up in a review tool for the attorneys. With that experience, we came to truly realize the revolution that TotalDiscovery would bring to the industry.

We eventually spun off TotalDiscovery in 2015 and watched proudly as it took on a life of its own. It remains the only truly integrated online platform, designed and built from the ground up together by a single development team, to handle the entire left side of the eDiscovery workflow, including: legal holds, custodian questionnaires, budget and early data and case assessments, remote data collections, comprehensive processing, search, culling and much, much more.

Stay tuned for part two of this blog where we’ll discuss BIA’s approach to eDiscovery, how the industry has changed in the past 15 years and more.

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Surprise! There’s a New eDiscovery Pilot Program Out There, and It’s a Doozy…

By Brian Schrader

Every once in a while, from a corner of the eDiscovery industry, comes something unexpected and hugely consequential. The latest comes from the Arizona and Illinois federal courts, where a pilot program for speeding up eDiscovery was launched recently. While the primary goals of the “Mandatory Initial Discovery Pilot Project” are laudable, a lot of industry experts and commentators – including us – are sounding alarms.

One of our favorite blogs, Above the Law, recently did a nice summary, which can be read here. And you can read up on the program and watch some informative videos on the Federal Judicial Center (FJC) website here.

While the program has the greatest of intentions – to simplify, speed up and reduce the costs of discovery (all discovery, not just eDiscovery) – there are aspects of the program that could have quite the opposite effect, as many commentators have pointed out. Probably the single largest concern expressed by many, and shared by us here at BIA, is the timing requirements. The program requires document request responses and productions be completed in less than 100 days. Yes, you read that right – 100 days. And it seems that there are very few exceptions or extensions allowed.

Now, yes, the program does exempt a series of case types that likely would be impossible to complete in such a short time period, such as MDLs, but it doesn’t seem to provide a great deal of flexibility beyond that. And, yes, while many cases are small enough that all discovery work could be doable in such a short time period, there comes a point on the curve where these new rules will increase the costs, decrease the efficiency and lead to general chaos.

And, while the materials and video commentary provided by the FJC acknowledge, in somewhat vague references, that everyone expects discovery would continue past the first 100 days, they couch that post-100 day discovery in terms of “continuing obligations” in discovery that exist today, and not in terms of extending the timelines where necessary.

Now don’t get us wrong here, BIA has always been for efficiency. We’ve built our reputation on designing and implementing eDiscovery tools and workflows that become just another business process – one that is smooth, efficient and affordable. Indeed, one of our Guiding Principles is “Transformative Solutions: We create order from chaos.” So, when given the opportunity to implement an improvement, we’re all over it. But, we’ve also learned that with each new idea often come new questions and unintended consequences.

And that’s our concern here. One of the program’s stated goals – in fact, one of the stated goals of nearly every innovation in and reformation of the eDiscovery industry – is to reduce costs. But at some point, at some case size, the goals of cost controls and shortened time begin to conflict with one another. And it’s that conflict that we believe the program has overlooked, or, at least, not provided for in any way.

In software development, there’s a concept called the “Mythical Man Month.” First introduced by an IBMer many decades ago, in short, it’s the idea that, at some point, putting more people or resources into a development project starts to increase the time required, not decrease it. How could that be? Well, adding more resources in a desperate attempt to hit a deadline can actually cause you to miss that deadline by an even wider margin because you are spending more time ramping up new members and managing an ever-larger team.

Same thing here. You can’t always just add resources to hit a 100-day deadline, regardless of the case size. Let’s take that “Mythical Man Month” theory and apply it to something more fitting to discovery: document review. If you have 600,000 documents to review, and you have reviewers who can review 60 documents an hour, that means that a single person would take 10,000 hours to review all of the documents. Extrapolating that out a bit, and assuming the averages hold, with 10 reviewers, this document review process would take 1,000 hours. 100 reviewers would take 100 hours. 1000 reviewers would take 10 hours. 10,000 reviewers would take an hour, right? Of course not. (And please, no TAR comments – the example here is for illustration purposes).

You see how crazy that gets, but it illustrates the point: at some level, simply committing more resources won’t work, or worse, actually works against meeting the goal. There are going to be cases that simply cannot be done within the 100 days, and a lot more cases where doing so will quickly become economically prohibitive, violating one of the primary goals of the entire program.

There’s another adage that fits here, too: You can’t have something (1) good, (2) fast, and (3) cheap. The best you can hope for is two out of three – such as paying out the nose for quick delivery of a good product or paying below market rates to get a sub-standard product quickly.

In this case, “cheap” isn’t an option, as the law mandates that eDiscovery efforts be “good” (not perfect, but good), and this pilot program has strict rules on “fast.” Here, the seemingly arbitrary 100-day deadline, especially when combined with no real guidance on exactly what that means and without any provision for judges to use their own common sense where appropriate, undoubtedly will have the unintended consequence in larger cases of drastically increasing eDiscovery costs – probably by a significant factor.

But this program can be easily fixed. Judges must be given discretion to adjust schedules to balance the goals of costs vs. time. There simply cannot be a bright-line rule that outright forbids any reasonable consideration. Courts cannot give up the primary goal of discovery being “good,” so the rest has to be balanced between “fast” and “cheap.” It’s critical that everyone understand that the cost to do something escalates as the time to do it shrinks – especially in a period as short as 100 days.

This isn’t the first time that strict and unflinching guidelines have been imposed on courts, tying judge’s hands, preventing them from being the true arbitrators of justice and resulting in not-so-pleasant unintended consequences. Let’s hope that that this oft-repeated lesson is learned once again during this pilot program, and judges are given the discretion to tailor timelines as common sense and cost controls require.

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eDiscovery and AI: A chat with BIA Partner Veritone

Last week, BIA sat down with Mike McDonald, GM of Veritone Legal to talk about Veritone’s artificial intelligence (AI) technology and how the recently announced BIA and Veritone partnership can benefit BIA’s customers.  Here’s what Mike had to say about how corporate counsel and law firms can benefit from AI, the BIA integration and where AI is headed.

Q. Tell us about Veritone.

Veritone is an AI technology company with the world’s first and only open platform that combines powerful applications with orchestrated cognitive computing to transform structured and unstructured data into actionable intelligence. We have dozens of best-of-breed cognitive engines that are continuously evaluated to provide the best possible outcome depending on client use and preference for accuracy, speed, and cost.

Q. How do you work with BIA? What's the integration?

BIA is a reseller of Veritone and an integral partner. Our teams work together to make BIA’s client’s media more easily and quickly searchable, and thus, vastly increase the efficiency of review and usefulness of those file types. BIA wraps its services around our AI software platform, integrating it into their existing workflows and other legal technology offerings and solutions. BIA’s project management and operations teams also work with Veritone’s teams to provide seamless, full support to their customers throughout all aspects of a matter.

BIA is uniquely positioned because they are working with their clients not only to integrate Veritone throughout the entire legal matter workflow, but for use in compliance areas as well.  From the routine compliance monitoring and associated potential issue identification to the often complex discovery workflows and tasks that accompany legal matters, BIA can help legal and compliance customers manage the audio and video communications that are being monitored in the Veritone platform. Clients can review the “hits” in our monitoring system and route important ones to the appropriate people.

Q. Give us an example of how it works.

For corporations in regulated industries, we can monitor, in real time where useful and appropriate, all of their audio and video communications for compliance and risk analysis. For legal, we have integrated our technology into Relativity where you can now play audio and video files and automatically transcribe them.  For example, a bank client can ask the platform to show where “someone said ‘guaranteed rate of return’ or where “John Smith said ‘delete the emails’ in a stressful voice.”

Q. Where is the AI industry at today in terms of the adoption curve? What is the future overall and in the legal space?

We are just at the beginning of AI and it is very exciting. Our open approach is enabling our customers to use openly-available AI engines. Today there are over 5,000 cognitive engines. In five years the number is expected to be over a million. And, in the not too distant future, there will be algorithms that identify market opportunities and build their own new algorithms to fulfill them. Our platform will continue to expand and very quickly start enabling AI in text-based documents through tools like Relativity, as we further expand our integration.

Q Anything else you want to add?

We are very excited to be working with BIA in the legal and compliance space. Making media searchable has historically been a very difficult exercise and Veritone’s platform of AI engines and integration with tools like Relativity will make it much easier for BIA’s customers. Add in BIA’s dedication to client service and support and it is a very exciting combination.

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Our sales team was honored to have volunteered at Food Bank for NYC’s Community Kitchen in West Harlem yesterday. Food Bank for New York City has been the city’s major hunger-relief organization working to end hunger throughout the five boroughs for more than 30 years. Community Kitchen sure put our chopping and chef skills to the test. We plan to be back in the New Year and thank them for everything they do every day to end hunger here.

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Veritone Legal Partners with BIA to Revolutionize E-Discovery and Legal Compliance

Top Artificial Intelligence Company Leverages its Veritone Artificial Intelligence Platform™ to Provide Fast and Broad Indexing and Search Services across Audio and Video Evidence

Veritone, Inc., a leading provider of cloud-based artificial intelligence (“AI”) analytics and cognitive solutions, today announced that it has signed an agreement with Business Intelligence Associates, Inc. (BIA), a leader in Managed Legal Services, to license Veritone Legal’s first-of-its-kind Veritone Artificial Intelligence Platform™ (VAIP) to advance its eDiscovery and Compliance capabilities for the analysis and discovery of audio and video data. Veritone’s VAIP provides near real-time, AI-based media capture, indexing and search capabilities to its clients in the legal, financial services and life sciences markets. A long-time leader, BIA is one of the latest companies to team with Veritone to revolutionize the legal industry by using its innovative and unique AI-based search technology to provide a secure, scalable and cost effective platform for managing audio and video data in litigation discovery and compliance processes.

BIA will harness the power of Veritone’s VAIP to satisfy the rapidly-multiplying demands for actionable intelligence for its customers. The foundation of an eDiscovery process starts with the defensible identification, preservation and collection of data, from any source, anywhere, anytime. Through the VAIP, audio and video recordings are ingested at massive scale and automatically transcribed; the resulting content is fully searchable and accessible in the cloud. Veritone Legal’s open platform dramatically improves the way audio and video media can be organized and searched, all at a fraction of the cost of competitive solutions.

BIA will offer the Veritone Artificial Intelligence Platform to its customers in the legal, financial services and life sciences markets to enable them to efficiently and effectively manage data for litigation, regulatory matters, and investigations. Prior to the introduction of Veritone Legal’s platform, these customers historically had limited options that were typically very expensive, time-consuming and hard to manage.

“Every so often, a solution comes into the market that dramatically changes the face of the industry. The Veritone Artificial Intelligence Platform is one of those game changers. This relationship will enable BIA’s financial services and life sciences clientele to analyze audio and video data faster, with more accuracy and intelligence than any other platform. It is by far one of the most remarkable new technologies I’ve seen in the past several years and BIA is thrilled to be an early adopter,” said Mark MacDonald, Vice President of Sales for BIA.

“In the same way that eDiscovery solutions years ago enabled automated analysis of large volumes of text documents, Veritone has now enabled hyper-scale, automated analytics of audio and video for eDiscovery and Compliance professionals. The performance and cost economies of the cloud, combined with Veritone’s unique, AI-based approach, are changing eDiscovery, proactive compliance and fraud investigations forever, and in some instances can even help to identify potential problems before they become legal or compliance issues,” said Mike McDonald, General Manager of Veritone Legal.

BIA will leverage Veritone’s cloud-based VAIP to empower, simplify and cut costs associated with eDiscovery search beyond text documents, enabling users for the first time access to audio and video files that have previously been largely unusable in litigation and proactive compliance efforts due to the high cost and significant time and manpower required. The VAIP will enable BIA to significantly improve the efficiency and effectiveness of its clients’ litigation efforts as well as their proactive compliance programs and investigations.

“Veritone Legal is committed to organizing the world’s audio and video and making it searchable, to dramatically change the way companies conduct eDiscovery and compliance programs,” said Mike McDonald. “The combination of Veritone’s cloud-based indexing and storage solutions, coupled with our powerful AI-based search and discovery capabilities, make Veritone a powerful partner for BIA and all of the industries it serves.”

Veritone’s platform currently ingests thousands of hours of audio and video content daily, leveraging its powerful suite of over 30 integrated cognitive engines, including natural language processing, logo detection, voice fingerprinting, facial recognition and object detection, creating a rich and actionable database and index.

To see Veritone CEO, Chad Steelberg, discuss artificial intelligence, watch this video.

About Veritone

Veritone, Inc. is a leading cloud-based Artificial Intelligence (AI) technology company that has developed a proprietary Veritone Artificial Intelligence Platform™. The platform unlocks the power of AI-based cognitive computing to process, transform and analyze data in a seamless, automated manner, enabling clients in the media, enterprise, politics, legal and law enforcement markets to generate actionable intelligence from the world’s public and private audio and video content, which comprises the majority of all global data produced each year. Founded in 2014, Veritone has won several of the industry’s most prestigious awards, including the 2016 Red Herring Top 100 North America Award and the 2016 SIIA Business Technology CODiE Award for Best Native Advertising Platform or Service. To learn more about Veritone, visit www.veritone.com.

About BIA

BIA is a leader in the legal information management industry, with over a decade of experience helping companies, governmental agencies, and law firms successfully manage data for lawsuits, regulatory matters, and investigations. Our Professional Services teams provide defensible, affordable, and integrated solutions that address the entire litigation and regulatory lifecycle, from initial identification and collection through review, production, managed document review and presentation. We strive to provide the most proactive, defensible and cost-effective eDiscovery solutions to our customers and do so with the goal of unparalleled customer happiness.

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BIA Announces September Webinar:  Legal Hold Best Practices and Related Ethical Pitfalls Attorneys Need to Know

Learn the Simple Steps That Will Protect Your Clients and Yourself from The Most Common Source of eDiscovery Sanctions

NEW YORK CITY – September 1, 2016 – Business Intelligence Associates, Inc. (BIA), a leader in eDiscovery and Managed Legal Services, announced that its September webinar will feature an updated for 2016 version of BIA’s highest attended and most requested program, Risk & Responsibilities: The Ethics of Legal Hold. Join two of the nation’s most sought after lecturers in the field of legal hold, Brian Schrader, Esq., (BIA’s CEO and co-founder) and Barry Schwartz, Esq., CEDS, (BIA’s Vice President of Advisory Services) as they present an updated edition of this highly acclaimed webinar.

DETAILS ABOUT THE PROGRAM:

Date/Time:             Thursday, September 15, 2016 at 1 pm ET/10 am PT

Title:                       Risk & Responsibilities: The Ethics of Legal Hold

Register:                https://cc.readytalk.com/r/wwwcprj4aec2&eom

ABOUT OUR PRESENTERS:

Brian Schrader, Esq., a founder and the CEO of Business Intelligence Associates, Inc., has over 20 years of experience in eDiscovery, computer forensics, information governance, technology and the law. A true pioneer and nationally respected expert in those fields, Brian also spent well over a decade of that time teaching, lecturing and participating in numerous industry panels across the country on those topics and more. Prior to founding BIA, Brian started and operated several technology companies and practiced securities and corporate litigation at a Manhattan law firm. He has been engaged as an expert in hundreds of matters including some especially high profile matters like the NBCU/Comcast Merger, the Jeffery Skilling Enron criminal trial, the American Express & Discover antitrust lawsuits against MasterCard & Visa, and the American Home Mortgage bankruptcy. He holds a Juris Doctorate from New York Law School and a Bachelor of Arts from the University of Illinois Urbana-Champaign, and is a member of the American Bar Association, the New York Bar Association, the New York County Lawyers Association, the Association of Certified Fraud Examiners and other professional and philanthropic organizations. He is admitted to the New York State Bar, the U.S. District Court for the Southern District of New York, and the U.S. District Court for the Eastern District of New York.  

Barry Schwartz, Esq., CEDS has over 35 years of legal and business consulting experience. He has extensive knowledge of the medical device and industrial industries, including practical experience with FDA matters. As a client-facing BIA Advisor, he is primarily responsible for providing consulting and advisory services to BIA’s clients. He adds a critical component to client projects, guiding them at a high level, and working with senior members of client internal and external teams to achieve specified project goals. As part of BIA’s Advisory Team, he assists clients in a wide variety of Information Management practice areas, including litigation & discovery, document retention & management, regulatory compliance, and IT security. He is highly proficient in discovery and document review matters and has been issued two patents. Barry is a Certified eDiscovery Specialist (CEDS), holds a JD from John Marshall College of Law at Cleveland State University, and is a member of the DC Bar.

About BIA:  BIA is a leader in the legal information management industry, with over a decade of experience helping companies, governmental agencies, and law firms successfully manage data for lawsuits, regulatory matters, and investigations.  Our Professional Services teams provide defensible, affordable, and integrated solutions that address the entire litigation and regulatory lifecycle, from initial identification and collection through review, production, and presentation. Our customers are our #1 priority, and we strive every day to provide the most defensible and cost-effective solutions available combined with exceptional customer service.

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BIA Announces July Webinar Topic

We are excited to announce its July webinar, The eDiscovery Project Manager, scheduled for the 21st of this month.  It will feature industry experts Michael Quartararo, CEDS, Director of Litigation Support Services at Stroock & Stroock & Lavan LLP and Adjunct Professor and Advisory Board Member of Bryan University; along with Adam Feinberg, CCFS, CEDS, SVP of Professional Services at BIA.  Michael and Adam will be discussing the role of the eDiscovery Project Manager, which is also the topic of Michael’s recently published book on the subject.  Join us as our presenters engage in a meaningful discussion on this timely topic. DETAILS: The eDiscovery Project Manager Date:                    Thursday, July 21, 2016 Time:                    1 pm ET / 12 noon Central / 10 am Pacific Register Here:   https://cc.readytalk.com/r/cdms5eojlcxx&eom

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Enter the BISO: Rise of the Business Information Security Officer

Blog Contributors:  Robin Athlyn Thompson and Brian Schrader

Information…  Any one of us could have a different definition of that word, depending on the context. In our day-to-day work at BIA, information most often means the Electronically Stored Information (ESI) that we help clients identify, collect, process, review and produce, and which may help prove or disprove the allegations contained within a lawsuit.  

Within most organizations, information is that data which contains the cultural history, process workflows, strategic business plans, creative ideas, competitive advantages, and future ideas of the organization.  For the organization, that information has financial value, appreciating or depreciating over time, just as any other organizational asset would. In fact, adjunct Professor at Oxford University, Jeff Ritter, spoke to us in our February webinar about creating organizational wealth through good information governance.

Over the years, we’ve watched historical changes in the way information is recorded and stored, from typewritten notes bound in minute books to the unending variety of digital information management systems prolific across both our personal and professional lives today.  We’ve also watched a number of changes in the business units which safeguard, regulate and protect information as an asset.

Historically, Legal often was the leading arbiter of policies and practices regarding the organization’s information, with records and information managers executing on policies created by the legal department to govern the safekeeping, retention and destruction of that information.  Today, Legal more often works with one or more other departments within the organization that help with that task.

First there were the departments headed by Chief Information Officers (CIO) and/or Chief Technology Officers (CTO) that stepped in to help not just create, but to enforce those information management policies generated by legal.  In the last several years, as the safekeeping and security of that information became more and more crucial, the Chief Information Security Officer (CISO) role arose focused primarily on the security of information.

More recently, another new senior information management position has begun to appear in organizations – one that focuses on a different critical part of the organization’s information management:  the Business Information Security Officer (BISO).  This new role works closely with the CTO, CIO and/or CISO and focuses on helping develop a culture and centralized strategy to manage risk and security.  The BISO helps ensure that each line of business works toward a central goal, designed to minimize risk, maximize protection and increase the value of the organization’s business information assets.  

Curious as to what exactly the BISO does today? You’re not alone.  Indeed, a popular request from our webinar attendees has been to learn more about the business units involved in information governance. This month we invited Retired Resident Agent-in-Charge, Cyber Investigations - Western Resident Agency, Hal Nicholson, to present our April webinar and discuss the role of BISO.   Hal is one of the foremost cybersecurity and forensics experts in the nation, and he will talk with us about how the BISO fits into an organization and discuss workflows and methodologies for that role. Register for the webinar here.  As always, our webinars are presented free of charge.

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ROI and the Corporate Legal Department

Blog Contributor: Robin Athlyn Thompson CEDS IGP CIP IG

Many of us dislike analyzing performance metrics, but, just as with other business units in the organization, the legal department must assess its operations and streamline processes.  The benefit of this exercise is a more streamlined legal department that can become a contributor to the profitability of the entire organization.  This is achieved through the analysis of performance metrics.

The need to reduce the operating costs of its legal department was the basic premise of the most well-known example of how the use of analytics can lead to dramatic improvements in the function of a corporate legal department – the DuPont Legal Model.

In 1992, DuPont made the decision to do an analysis of its legal department metrics (internal performance, vendor partnerships, and law firm relationships) to determine how internal processes and utilization of partners could be improved.  Through a review of the analytics of its operations, improvements to processes, workflows, and relationships were made which resulted in a shortened lifecycle of litigation and the substantial reduction of the cost of managing its operation.  The DuPont Legal Model has served as a guide for other corporations, large and small, to take control of managing their litigation, outside vendor partners, and outside counsel. It serves as a model for the standard of program evaluation and best practices for corporate legal departments by showing how the use of performance analytics can lead to greater departmental efficiency.

As we at BIA watch corporations of all sizes take control of their legal processes by bringing them in-house or being directly involved in decisions affecting litigation and regulatory inquiry, we wanted to present a program devoted to performance analytics and the modern corporate law department.  Our featured speaker this month is Brett Tarr, Esq., eDiscovery Counsel for Caesar’s Entertainment, who has devoted a significant amount of his career to the study of analytics for efficient management of corporate legal departments.  We invite you to join us this Thursday, March 17th, at 1 pm Eastern (register here) for this great discussion on how analytics can be used to improve the corporate legal firm.

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Managing eDiscovery In-House

Robin Athlyn Thompson, CEDS, IGP, CIP, IGP and Brian Schrader, Esq., Blog Contributors

This month, BIA kicks off our 2016 Knowledge Leadership Series of webinars.  Our 2016 series features in-house experts who will share their experience­­­ in issues that arise when managing eDiscovery and ESI at the corporate level.   There is no better topic of discussion to begin this series than a look at how more and more corporations are establishing their own eDiscovery units. This webinar will feature Ben Robbins, eDiscovery and Information Governance at LinkedIn, who is presenting “Establishing Corporate Discovery Units.”  

It is no longer a surprise to see data and articles informing us that more and more corporations are establishing in-house discovery management teams. Nor is it a surprise to see that corporations are managing the oversight of, and making direct decisions regarding, ESI and discovery management for the organization.  This has been a trend that we first began monitoring in 1992 when DuPont established a legal model that resulted in substantial litigation cost savings and a shortened lifecycle of litigation.  We’re still talking about that model nearly 25 years later.

What we are seeing more of these days is a trend for mid-size and smaller corporations to establish their own teams to do this work rather than rely on outside counsel.  

Over the last decade or so, we have based much of our market forecast on hiring trends.  We have seen more and more positions advertised in corporations for eDiscovery positions, and those job descriptions have revealed 6 communities of practice that are routinely a part of the eDiscovery process.

In fact, just in the last 2 weeks, our review of hiring trends shows 26 companies advertising for eDiscovery personnel requiring experience or certifications in records management (CRM) and governance (IGP); security and privacy certifications (CISSP for example); and/or risk management backgrounds, IT certifications, or legal   experience/eDiscovery experience including the CEDS designation.  

Another interesting trend we observe occurs here with our educational series. Since we began this series in 2012, more and more of our webinar attendees come from these same business areas.  And that trend continues into our daily business, where over 90% of our work at BIA today is directly for corporate clients.  

And, in fitting with that focus on these areas, nearly all our corporate clients have taken control of at least the left side of the EDRM, managing legal holds, data collections and preservation and ECA tasks in-house using our TotalDiscovery solution. Indeed, most of those corporate clients are also centralizing all of their review hosting and attorney review with BIA as well to further keep close control of the entire process.  

By doing so, not only do are corporations able to leverage their legal spend across matters, but often more importantly, they have complete control of their enterprise data throughout the eDiscovery process – an issue of more and more importance as organizations develop a more holistic approach to their organizational eDiscovery and information management processes.  

We look forward to you joining us for this exciting webinar and hearing your feedback on your experience in building corporate eDiscovery teams.

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Exiting Employees – Not to be Overlooked for Legal Hold Issues

Blog contributors:  Barry Schwartz, Esq., CEDS and Brian Schrader, Esq.

The start of a new year typically brings an increase in career movement as employees leave current employers for new opportunities. From a data, risk and litigation management perspective, that means it’s also time to be mindful of the potential impacts of such departures and take steps to protect the company and mitigate the associated risks.

The first step is to be certain you have a procedure in place to notify essential departments and team members as soon as it becomes known that an employee is departing (or even taking an extended leave of absence), whether voluntarily or not. While organizations differ, essential departments generally include human resources, information technology and legal, as well, of course, as the employee’s manager(s).

Notification though is just the first step. It’s important that those teams know what to do next. To that end, your teams should have specific, organizationally customized checklists of tasks that must be completed upon an employee’s exit. And again, while every organization is different, the primary high-level considerations are (1) legal and data preservation obligations and (2) system protection and information security.

With respect to legal and data preservation obligations, an employee’s exit should trigger a review of existing document retention policies, regulatory requirements and active legal hold obligations to determine if the exiting employee is subject to any such requirements. If so, there should be well-outlined steps that must then be taken to ensure retention and preservation of both electronic and paper records.

With respect to system protection and information security, the IT department should immediately take steps to disable the exiting employee’s access to all systems (hopefully per policies in place long before the employee leaves). That includes not only the employee’s email and login credentials, but also access to any corporate resources that might not be connected directly to the employee’s login credentials.

And don’t forget third party systems like Salesforce, Netsuite and many, many more. While many of those solutions integrate with Microsoft’s Active Directory, which helps centralize access management (and the revocation thereof), many are not (or are not configured by the company to do so). Indeed, it’s critical that the IT team regularly review and update lists of both internal and external resources to ensure that all systems are part of the exiting employee access revocation process.

Finally, those two general areas don’t exist in a vacuum. The IT department’s equipment destruction, recycling and/or repurposing of any individual resources – be that a laptop, tablet, cell phone, personal network storage location or other resource – must have a consideration for preservation obligations. Often times that simply requires a sign-off by whomever is doing the data preservation review, but the step is an essential element and the one organizations most often struggle to successfully implement.

That said, the above is a very high-level review of some of the more important best practices in dealing with exiting employees. For a much more in-depth analysis of these issues, watch the recording of our “Stop the Leaks! Top Tips for Handling Exiting Employee Data” webinar here.

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Top 10 Questions on the Ethics of Legal Holds – Part 2

This week’s blog contributors are Barry Schwartz, Esq., CEDS and Brian Schrader, Esq.

As promised in our blog on Tuesday, here is part 2 of the top 10 questions on the ethics of legal Holds.  If you’d like to replay our webinar on the ethics of legal hold, you can do so here.

Is it a good strategy to collect data from all employees exiting the company even if they are not on a legal hold?

We also get this question frequently, and in fact, it has been the subject of a prior blog.  What happens if Mary leaves a company and six months later we find out she was an integral part to a lawsuit, and we didn’t do anything to preserve her data?  As is often the answer in the legal arena, this falls to a test of reasonableness. Was it a good or bad decision not to include her? Was your decision reasonably based on what you knew at the time?  No one is perfect, and no one expects perfection. You must balance risk versus reward.

If I am in a company that has a lot litigation, and I’ve got certain people, managers, or executives who are regularly involved in litigation, I may want to preserve their data as they exit the company for a set period of time to make sure the information was not important or relevant to any ongoing or anticipated litigation. On the other hand, if you are in an organization with 100,000 employees and frequent turnover, that may not be realistic or economically feasible, so it comes down to what a reasonable person would do.  

It’s more important that you have a defined process, that you have taken time to look at what your obligations are and how you will handle exiting employees to be able to show that you are routinely making reasonable decisions.  In most organizations this area is a black hole, and they are not looking at this issue at all and are caught off guard.  If you put in a process where you evaluate employees, and look at key employees, especially under the fairness and general balancing approach reflected in the upcoming Federal Rules amendments, you will be able to show the court that you had a reasonable, defensible process.  Again, courts do not expect perfection – they expect a reasonable, thoughtful approach.

How important are custodian questionnaires, and should they be used in every matter, or only larger matters?

Custodian questionnaires are one of the most useful, yet underutilized and often underappreciated tools in the discovery process.  We cannot recommend enough that you should almost always issue custodian questionnaires, regardless of the size or type of litigation. Custodian questionnaires are often used to ask custodians where and how they create and store ESI, but they can be so much more useful than that.  

You can use them to ask custodians whether anyone else should be considered a custodian, and by doing so, help bolster the defensibility of your custodian identification process. You can ask custodians factual questions as well – it’s not just about finding data – it’s a questionnaire, so ask anything you’d like, and don’t worry, it’s all privileged.  

Some people look at the custodian questionnaire as a burden; we tell our clients to look at the custodian questionnaire as one of the best tools they have and, especially in cases with larger numbers of custodians, there is nothing more efficient and cost effective than a custodian questionnaire to aid in the fact-finding and custodian and ESI identification process.

May custodians be released after all data has been collected from them?

No, you shouldn’t release custodians in the middle of a case unless you have an agreement from opposing counsel or a court order.  You never know when something in a lawsuit will take a left-hand turn or some entirely new (but related) aspect may arise, and if you’ve released your custodians because you thought you had everything collected, you’ll be caught in a pretty hard spoliation argument.  

Legal hold obligations don’t just happen at the start of a litigation; those obligations generally continue throughout pendency of the case.  While releasing custodians won’t necessarily result in sanctions, as the party seeking sanctions (especially under the pending rule amendments) still would have to prove that relevant data was lost, releasing custodians early, without an agreement or court order, would be an incredibly risky move.  

If a company has third party vendors, is it the vendor's responsibility to distribute and maintain the legal holds for its relevant employees or does the company need to track these as well?

While we haven’t seen a case on point, based on the reasoning in available case law, there is no delegation of the legal hold responsibility.  Thus, it would come down to you working with the third party as to what they are going to do and how they are going to do it.  There’s nothing that says you cannot issue individual notices to the individual employees (or contractors, etc.) of that third party, but we cannot image doing so in a vacuum.  We wrote a blog post specifically talking about legal hold obligations when it comes to third parties: http://blog.biaprotect.com/post/98770710942/dont-forget-third-parties-when-issuing-legal.

Does each legal hold stand on its own, or are there overlapping concerns?

Generally speaking, Courts will look at each legal hold process on its own, but there can be exceptions, especially where cases are arguably related.  For example, the U.S. District Court for the Western District of Louisiana recently found in In re: Actos (Pioglitazone) Products Liability Litigation that a previous legal hold that arose nearly a decade before (and was still active) was related enough, and the legal hold broad enough, as to cover materials that should have been preserved for the new litigation, and thus, found spoliation of evidence.  In another case, In re: Ethicon, Inc. Pelvis Repair Systems Product Liability Litigation, the court found a similar prior legal hold had been put in place, but because that prior legal hold was much more narrowly scoped, the sanctions were not as severe.

When I release custodians from a legal hold in one case, what happens if they are on other legal holds?

While there’s no clear cut obligation to do so, we recommend to our clients that, in the release notice, they remind the custodian of any other legal holds they might be on that are still active.  Indeed, in our TotalDiscovery solution, you can do that automatically as part of that process.

One of the reasons we developed our educational series of programs, was to encourage stakeholders to stay continually educated and to ask questions.  Those questions generally lead to better understandings and processes. If you have questions that you don’t see answered in our blogs, and you’d like our help, write us at [email protected].  Speaking of education: join us next month on November 19th at 1:00 PM/ET when the topic will be the eDiscovery Project Manager with Barry Schwartz, Esq., CEDS and Adam Feinberg, CCFS, CEDS. You can register for that program here.

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Top 10 Questions on the Ethics of Legal Holds – Part 1

This week’s blog contributors are Barry Schwartz, Esq., CEDS and Brian Schrader, Esq.

Our October Knowledge Leadership Series webinar featured our most requested topic, Risks and Responsibilities: The Ethics of Legal Holds. The webinar attendees asked some great questions on a variety of topics, and we thought we would share our answers to the top 10 questions and concerns they raised, as we know most of our readers are probably asking many of the same questions and facing many of the same issues themselves.  We’ve summarized the questions and answers below in a two-part blog. Look for Part 2 on Thursday! If you’d like to hear the entire webinar, you can replay it here.

Is it necessary to put all employees on notice of the issuing of a legal hold in addition to key custodians specifically?  

No. In fact, you should never just blanket all employees with a legal hold notice. If everyone gets a notice every time your company is sued, regardless of their individual involvement or relevance to the lawsuit, then very quickly you’ll see a “boy who cried wolf” mindset develop where those notices are simply ignored.  Indeed, that could be harmful not only to the effectiveness of your legal hold process, but it could be used by your opposition to show that the entire process was seriously flawed.

If you feel you need to let your employees know that there is a lawsuit pending to quell any internal rumor mongering, then by all means communicate that message to your employees as you see fit, but don’t make that announcement part of your legal hold process.  

Does an intranet posting of a Legal Hold suffice?

No. An internet or intranet notice, by itself, is not sufficient.  That would be akin to posting a memo on an employee bulletin board, and courts have found that is insufficient on its face.   You must directly notify the custodians, and you must get some form of acknowledgement from your custodians that they understand their obligations.    

When a company has a document destruction policy keeping everything for at least 10 years, does the importance of a document hold decrease?

No. You cannot rely on your document retention policy and simply ignore your legal hold notification responsibilities, and courts have repeatedly rejected a party’s deferral to their document retention policy as a defense against spoliation claims.  The point is that even where the general practice or policy might be to essentially store everything forever, it’s not the same as specifically instructing custodians that they cannot destroy data – that they specifically have an obligation to preserve data.

Are there any recommendations on triggers tied to severity? Specific to claims typically w/insurance coverage - whether work comp, auto accident, CGL, etc.?

That’s a tough one to answer because if you have a claim of say $5,000, and you don’t believe it warrants a legal hold, and that claim later mushrooms to a bigger claim and you didn’t issue a hold, you’re left standing with a lot of exposure for failure to issue a legal hold.  So the question becomes how much risk are you willing to assume?  

There’s no bright line rule to the triggering event.  The standard is: what would a reasonable person do? The issuance of the legal hold, and even the actual collection process itself, is something we continually remind our clients is the cheapest thing they will do in any litigation.  So, we always recommend that, when in doubt, default to issuing a legal hold notice.  Look at it as an insurance policy: yes it costs you something now, but if called to the carpet, it will protect you later and probably save you vast multiples of what it cost you to issue the hold. Sure, under that policy, you may issue a legal hold when you didn’t need to, but the costs of that are a heck of a lot less than the potential case ending sanctions you’ll face if you made the wrong choice.

Many times you don't want to give notice throughout an organization that you are going to file a lawsuit - how do you balance the requirement to issue a legal hold without disclosing that a lawsuit is on the verge of being filed?

First, as we addressed earlier, you really should never be issuing a legal hold “throughout an organization.” That said, there comes a point where your legal obligations are going to trump your desire for secrecy.   Strategy and secrecy concerns are not a defense for failing to issue a legal hold.  Once you have made the decision to file a lawsuit or you know there’s a reasonable anticipation of litigation, your obligation to issue the legal hold starts, and there’s little or no excuse courts will accept to override that obligation.

Although we’ve never seen a case on point, based on a multitude of cases that have rejected all sorts of defenses or excuses for not issuing a legal hold, avoiding issuing a legal hold notice to protect a corporate secret would likely be rejected outright.  By all means, tell the custodians the nature and secrecy of the topic and instruct them to keep the matter confidential – you even could do that directly in the legal hold notice itself – but don’t wait to issue the legal hold notice.  

If a custodian is a board member who is not part of your organization and they use webmail, like Gmail or Yahoo, does the opposing party have to engage with the board member directly or would our organization be "accountable" for preserving and collection information from the board member's personal accounts?

You would likely be held responsible for the preservation of the data, even if in a personal account.  The legal hold obligations apply to anything in a party’s “possession, custody or control…” - which casts a pretty wide net. As we discussed in the presentation, in the case Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012) the Court held that defendant had to assert a litigation hold on its present and former independent title agents, as the defendant had clear (and contractual) control over the data held by that third party.

So, whether you would consider a board member a “third party” or not doesn’t really matter.  In that relationship, even if the company doesn’t technically have possession of the data in question, they’d likely have control over that data either by contract or operation of common law.  Thus, a court is likely to find that the company held the obligation to ensure any potentially relevant data was preserved.

That said, from a practical perspective, you’d most likely want to keep those individuals within your overall discovery scope.  While directors could clearly be individually subpoenaed, it would be much more effective and likely strategically important for you to retain control and oversight of that process.

How often does BIA suggest custodians be reminded that they are on a legal hold?

Generally speaking, monthly or quarterly reminders are usually appropriate.  With solutions like our TotalDiscovery software, we see clients actually create different reminders for different subgroups – oftentimes reminding primary custodians monthly and secondary or edge-case custodians quarterly.  Clearly a monthly reminder would be the most defensible, but like most other things in eDiscovery, it really depends on the nature of the case, the claims, and the relative involvement of the various custodians.  

One of the reasons we developed our educational series of programs, was to encourage stakeholders to stay continually educated and to ask questions.  Those questions generally lead to better understandings and processes. If you have questions that you don’t see answered in our blogs, and you’d like our help, write us at [email protected].  Speaking of education: join us next month on November 19th at 1:00 PM/ET when the topic will be the eDiscovery Project Manager with Barry Schwartz, Esq., CEDS and Adam Feinberg, CCFS, CEDS. You can register for that program here.