Welcome to Module 1-A. This first module is a general introduction to e-discovery and the team-based solution that most attorneys follow.
Overview of the Problems Posed by e-Discovery and the Team-Based Solution
Computers and other technologies dominate the world as we know it today. This is not a passing fad; it is a new culture. An information and technology age is rapidly replacing the old ways in every field, including the law. This is particularly true for companies and attorneys involved in litigation. Since most of the evidence today is digital, litigators must not only understand the law, and the facts of a dispute, but also the parties’ computer systems and data retention practices. Without this understanding they will be unable to preserve or discover the evidence they need to prosecute or defend a case.
Next watch Professor Losey’s short video answering the question What is e-Discovery? (For best results, use the full screen mode (arrow on bottom right corner). If your Internet connection is not quite fast enough to keep up with the streaming videos, try pausing to let the stream get ahead of you. Pausing at the start will also help make the video start up without to much stuttering. These instructions apply to all videos in this program.)
The IT systems that contain digital evidence are extremely complex and technical. Most in-house legal counsel and trial lawyers are only trained in the law and paper chases. They have only a poor understanding of the technicalities required to find the needles in today’s vast system of computer haystacks. The business executives in most organizations are also ill prepared in this field, and fail to grasp the importance of information management. This has led to many well known, spectacular losses over the past decade, from Zubulake to Morgan Stanley. Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 674885 (Fla.Cir.Ct.. 2005). The largest corporations in the country, and the top law firms that represent them, have all made huge, embarrassing errors, some of them many times.
Litigation is now more expensive and risk-filled than ever before, but not, as many believe, because of run away juries or expensive trials. Although these possibilities remain as real threats, in fact 98% of all federal court cases are resolved without trial. Litigation today is difficult primarily because of discovery. In the areas of commercial, regulatory and employment litigation, discovery can involve forced disclosure of massive amounts of internal, otherwise secret, business records and information. The most burdensome discovery today is for email and other electronic documents located on a litigant’s computers, so-called “electronic discovery” or “e-discovery.” The costs associated with e-discovery requests can be enormous, sometimes far exceeding the total amount in controversy. These same issues also apply to state and federal government investigations where no suit has been filed.
The problem of e-discovery reached such epidemic proportions that in 2006 the Supreme Court promulgated new Rules of Civil Procedure for all federal courts to follow to try to address these issues. The new Rules govern what is referred to as Electronically Stored Information (“ESI”), which includes not only all computer files, but all other electronic information, such as voice mail and videos. Although the Rules clarify certain issues, they also impose very stringent time requirements. For example, the Rules now require companies to preserve and produce within the first 100 days of the commencement of a lawsuit the relevant ESI within their employees’ computers and other storage devices (such as thumb drives and cell phones), no matter where they are located. Years after these new rules went into effect, most U.S. businesses are still not prepared to meet these deadlines. The situation is worse for foreign companies doing business in the U.S. for a variety of reasons, including conflict of laws and the widespread dispersion of technology and ESI in different locations around the world.
The Rules, combined with the rapidly changing Internet-oriented culture in both business and society, and the vast expansion in the amount of information most organization store, create serious information management difficulties for everyone. The courts tire of mistakes and delay. They are increasing the pressure upon litigants to get their ESI house in order. Strict compliance is starting to be enforced by judges across the country who no longer tolerate the “pure heart, empty head” defense in the area of e-discovery. They no longer tolerate self-collection of ESI by the witnesses in a case. They want more reliable collection supervised by attorneys. All litigants are now subject to severe penalties for the accidental deletion of ESI that might be relevant to a lawsuit or government investigation. Liability may accrue even if the ESI is lost before notice of the suit or investigation, if a court later determines that the proceeding should reasonably have been anticipated. Penalties will almost certainly accrue if the destruction of ESI occurs after suit is filed. Business and the legal profession are now more challenged than ever before to solve these problems.
The $1.5 Billion Dollar verdict against Morgan Stanley in the Coleman case in Florida, even though reversed on other grounds, shows how important effective preservation procedures have become. So too does the well-known Zubulake case in New York against the Swiss bank, UBS Warburg, which resulted in a $28 Million Dollar jury verdict for sexual discrimination. Most agree that UBS Warburg lost the case in large part because of sanctions for missing emails, and not the actual merits of the case. In a world where sixty to eighty billion emails are sent daily, and most large corporations have more information stored on their computers than the biggest libraries in the world, the accidental loss of ESI can easily occur. The Zubulake and Coleman cases showed in 2005 that these mistakes can be very costly. Yet the mistakes continue. They seems to be increasing.
For more thoughts on why electronic discovery is a significant problem today for U.S. and other modern systems of justice, watch these two short videos by Ralph Losey. Again, try pausing at the start to help make the stream flow smoothly.
The Four Pillars of Successful Electronic Discovery Practice.
The problems of e-discovery can be solved in three ways as this online course will explain in the Modules that follow: Interdisciplinary Teams, Cooperation, and Metrics. Education is the fourth pillar of e-discovery, the one that is the cornerstone of the rest. Here is a quick summary of the four keys to successful e-discovery.
The first pillar, Teams, has its home on Ralph Losey’s e-DiscoveryTeam.com blog. Losey did not invent the idea and is not sure who did, although it looks like CISCO was the first company to roll one out. You will learn much more on all of that throughout the course. The Cooperation pillar again has its home in The Sedona Conference, an important think-tank type of organization of lawyers, judges, professors, and IT experts with an interest in e-discovery. Their publication, the Sedona Cooperation Proclamation, lays out the basic premises of cooperation and transparency needed to conduct e-discovery successfully. The third pillar of metrics and advanced technology is promoted by most everyone involved in the field, including especially a multi-billion dollar industry of electronic discovery vendors. They provide a confusing array of special software and hardware systems to facilitate the management, discovery and production of digital writings in the context of litigation. The key problem they all address is one of search, how to find the needle of relevant evidence in the electronic haystack of vast amounts of electronically stored information. Many of the classes in this course will cover this important subject.
Quality control is an important component of the new methods and technology for search and production. One of the best tools for this is to collect and review a random sample of a large data-set. For the convenience of students here is a reliable random sample generator that we made for you.
For more information on the use of random samples for quality control and testing see Ralph’s article, Secrets of Search – Part II, in the section on Secret of Sampling about half way down the page. Also see Application of Simple Random Sampling (SRS) in eDiscovery, a manuscript by Doug Stewart, submitted to the Organizing Committee of the Fourth DESI Workshop on Setting Standards for Electronically Stored Information in Discovery Proceedings on April 20, 2011.
These three pillars are the foundation of Professor Losey’s e-discovery education program. Education is itself the fourth leg that makes it all possible, that allows for competent e-discovery practice. Education provides the stability that three legs alone can never provide. When lawyers, judges, paralegals, techs, and management all have a common body of knowledge and skill sets, the team can work efficiently and just results can be realized. With knowledge also comes the confidence and ability needed to cooperate. Many lawyers don’t cooperate because they don’t know what is important and what isn’t. Education also brings the skills needed to create and use new methods and technologies, to use measurements, numbers, and methods. This is the best way to get out of the money-pit that often still characterizes e-discovery.
For more on the fourth pillar of education take a look at this animation, Episode 3 of Star Trek Meets e-Discovery: Starfleet Academy Training. This considers a situation where a large firm or corporate law department needs to be trained in e-discovery to avoid obsolescence. This episode begins with Kirk receiving orders to train a whole planet of lawyers in e-discovery. As usual, Spock objects to the orders as irrational and explains why it cannot be done. Captain Kirk forges ahead anyway and finds a solution. Spock is impressed, but not with Kirk’s celebratory dance. It is a tough mission for the Enterprise, but the advanced e-discovery trained crew is up for it. They use the proven programs and latest techniques of Starfleet Academy to train older lawyers in e-discovery, in much the same way that I use law school proven programs and techniques in this online training program. Tradition, hard work, innovation, and creativity are the keys to learning, in school and out.
If a large organization is involved in litigation, and that includes almost every large company and branch of government, then it must solve the problems of electronic discovery or risk. The consensus threshold solution to this problem is the formation of an e-Discovery Team, an interdepartmental group comprised of lawyers, IT and management. It rests on the three areas of knowledge essential to effective e-discovery: Information Science, Law and Technology.
The multidisciplinary team approach to e-discovery unquestionably works, but it is also true that these teams are notoriously difficult to set up, train and function effectively. The cultures of these three groups, even within an otherwise close-knit company, are very different, and so too are their languages and gestalt. Special efforts have to be made to bridge these gaps. For instance, members of the team should be carefully chosen and rewarded for participation, and typical team building techniques employed. But the most important components for success are training and group work on a detailed, specific set of tasks. (An overview of these tasks is shown in the standard nine step chart of e-discovery work that follows.) The group work establishes the common language and understanding that will eventually bring the members together and allow them to function as an effective team.
A few companies, such as Pfizer, Halliburton and Merrill Lynch, began working on e-discovery teams years ago. They now have successful teams operating that demonstrate the enormous cost savings and risk management benefits of the internal team approach. The advice that some of the leaders of these teams provide is provided later in this course.
Although all experts I know in the field now advocate for e-discovery teams, and we already have a few success stories as guidance, the vast majority of large organizations today do not have an e-discovery team. They are either in denial about the scope and severity of the e-discovery problem, or they have not yet caught on to the fact that an internal e-discovery team is the best solution to this problem. Other companies are aware that they need an e-discovery response team, but are still in the early stages of team formation, or their early efforts are floundering for a variety of reasons. Most companies have not been able to get off the ground on this because they lack the necessary expertise or knowledge of the tasks to be performed. They are unfamiliar with the types of e-discovery protocols and procedures they need, and under estimate the challenges mentioned with bridging the different cultures of IT and Law. The few that have succeeded received help from outside attorneys with special expertise in this field, or from consultants and vendors. The best success stories have used all three. This is one reason this is such a rapidly growing field, ripe with potential for lawyers, consultants and e-discovery vendors alike.
READING ASSIGNMENTS. Read the two cases cited here, Zubulake and Morgan Stanley. (You can skim-read most of the lengthy Coleman v. Morgan Stanley opinion.) Think of at least one thing in each opinion that strikes you as odd and unusual. Also, can you understand why many call the Coleman case a good example of the jurisprudence of anger? Do you agree? Next, click on all of the links in the above materials, if you have not already, and look around. Consider which of the many papers published and available online at the Sedona Conference appears to be the most interesting for you and why.
EXERCISE: Write a summary to yourself (or a friened) of what you have learned from this class. This kind of writing assignment is something you might want to do throughout this course. It will be good to refer back to later.
Bonus Exercise: See if you can find out who wrote: Boredom is the enemy of education and imagination and creativity are its friends. Yes, the answer to this and all other questions posed in this course can be found online somewhere. This one is easy, but some of the others in this course may be challenging and take a while. Learning good research skills is one of the purposes of these supplemental assignments.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015
This module is key – laying a sound foundation for the rich material which follows. It’s easy to become overwhelmed by the ‘technical’ aspects – especially when you’re new to it. When it becomes too crazy or seems too abstract or absurdly complex, it often helps to realize that electronic information is still just evidence – boil it down to the same concepts and issues that existed in the much-simpler, all-paper world. If you’re a lawyer, find a geek you can talk to – just as they’d be wise to find you if they needed legal help. Then, wrap your brain around the INCREMENTAL challenges posed by CUSTODIANS using TECHNOLOGY – and the different approach required when the information (needed in litigation) is DIGITAL.
Case in point – I see Information (Records) Management (“step 1” in the EDRM and Sedona discussion, above) as an ongoing activity that is not a step in any individual case. It’s all of the day-to-day activities in an organization which create, store, modify, distribute, transmit, duplicate and (ultimately) destroy information. It existed in pre-digital days (e.g., “Records Retention Processes” for “official” records have existed for decades, as have individual processes for managing paper-based used by humans beings – notebooks, drawings, anything written). While some of the paper was tightly controlled (like contracts and other “official” documents), much of it was up to individuals to “manage”. Most of the “unofficial” written info. was known only to one person (or a small number of individuals) – its existence (when it was created & why, by whom, in what form), and its management (stuck in a drawer, thrown into the trash, shredded, mailed to someone else, stored offsite (like at home), etc.)..
This course is crucial to understand how all of the issues and volumes which existed in the pre-digital world, have been magnified and multiplied thousands of times, when the people (CUSTODIANS) in an organization began to use and exploit digital information – and how computers (and other digital devices, or REPOSITORIES) have simultaneously made information more available, in much larger volumes AND infinitely more complicated in terms of how, who, when, and in what manner etc. etc. it is “managed”.
The rest of the EDRM “steps” (2 thru 9, above), then, are triggered by specific events (usually, a lawsuit, although could be other events such as regulatory and other external or internal investigations). In large companies with lots of events (lawsuits), the WAY each step occurs can be IMPROVED each time it occurs on subsequent cases. In fact, the (re)-use of techniques developed in prior efforts (and the improvement of the WAY the step is conducted in future events) is a staple of BUSINESS PROCESS improvement that many companies try to achieve. A continual-improvement focus – essentially, “natural selection” applied to business processes – is very common in MANUFACTURING (BUSINESS) PROCESSES, FINANCIAL PROCESSES, HUMAN-RESOURCES processes, etc., etc., and it can easily be used to create consistent LEGAL BUSINESS PROCESSES and to improve them, over time. The key is to recognize that huge value occurs when repetitive activities are made as REPEATABLE as possible: that MORE value happens when the steps produce PREDICTABLE results: and (especially in legal processes involved in litigation) the OPERATION of the process is DEMONSTRABLE (DEFENSIBLE).
REPEATABLE…PREDICTABLE….DEMONSTRABLE. These are characteristics of business processes that are efficient and effective. When processes meet these criteria, productivity of the resources involved (people, machinery, computers, etc.)… results are consistent… and the outcome of the work is easy to SUBSTANTIATE (e.g., prove). This is true for any business process – and in the case of business processes which allow the company to meet its legal objectives (defend itself in court, for example, or prevail to halt the actions of other parties who cause it harm) the DEMONSTRABLE (DEFENSIBLE) part is paramount. Of course, as Prof. Losey will reinforce and reiterate, so too, are the need for EFFECTIVENESS and EFFICIENCY of legal business processes in eDiscovery – everyone agrees that the costs are outrageous and must be reduced, and the courts require extremely short timeframes for pretrial activities. Companies who intelligently design and continuously improve their eDiscovery processes, will reap benefits in the pretrial context – through reduced costs, predictable outcomes and an ability to refute any challenge to the accuracy of their result. Those who achieve these results sooner, will have an advantage over adversaries whose eDiscovery activities are less effective, efficient or provable.
You’re in the right course.
One final note: The sheer amount of digital information created by (and involved in) day-to-day activities in our modern society, is powerfully illustrated in the “Did You Know?” YouTube video that Prof. Losey created (also with Jason Baron from the National Archives). Might be a little out of date, but it conveys the enormous amount of digital information that exists and the accelerating rate of new-information creation. Highly recommended.
Joe makes a great point in his first paragraph; electronic discovery is not a new area of practice (although the complexities have prompted firms and practitioners to consider it somewhat in that light). We need to remember that the emphasis should be on discovery rather than electronic. All the rules of discovery and evidence still apply and new rules/law will develop as we understand more and more about how the intersection of the practice of law and the use of information technology needs to be managed.
Joe also emphasizes the need for a process view and attention to the people involved. In fact, I believe the biggest challenges faced by the profession are in how to integrate process/project management into the practice of law and avoiding the temptation of focusing on technology rather than people and process.
Great!! Answer to the Boredom question: You are the trademark holder of that phrase. 🙂
You are correct. I have dealt with numerous vendors over the course of various complex litigation, and often find very helpful if you know what you are dealing with. Some vendors are there to make money and, there goal is to get as much work as they can get. Knowing the utility and, the capability of the software and being able to negotiate a competitive rate will truly benefit your client. If you understand the basics of lets say one software, you should be able to apply the logic to any other software that you may come across. I always have a checklist of things to ask the vendor before I sign up any project with them. In this economy, client’s cost is number one in my mind and of course – in client’s mind too!! Will move on to the next section now!
Knowing the vendors are trying to maximize profits and that the key to sound electronic discovery is in knowing how to utilize the technology in a defensible process prompts me to ask how we can ensure that the benefits of ediscovery reach all practitioners and the clients they serve. You would no doubt be shocked to hear that vendors sensationalize ediscovery issues in order to prompt spending on big tools and awesome professional services talent. But what about the sole practitioner or small firm and the clients they serve? They availability and use of technology is broadly available and used without much regard to cost (with an email address I can create, store, and maintain gigabytes of information in the “cloud” through the use of an internet cafe computer that I pay for by the hour). How do we keep ediscovery from pricing some clients out of the system ostensibly formed to protect their interests (a concern voiced by Justice Breyer in the mid-2000s)? I suggest that the very technology that makes creation of electronic information ubiquitous and fairly cheap can be leveraged to provide the same class of solutions for ediscovery – the key is in the practitioner.
For instance, if you get a chance take a look at EarlyCase (earlycase.com)
Good lesson – Scheindlin, EDRM, and the Sedona Group continue to be three major resources for learnings on the law and process of e-discovery. Not surprised that Coleman seems to be the source for the phrase “jurisprudence of anger” – failure to recognize (or seemingly attempt) to fulfill the requirements of e-discovery and then dump the problem in the court’s lap is never a good strategy (although it appears many still haven’t learned the lesson; Qualcomm v Broadcom comes to mind).
Emphasizing people and process is central to success in e-discovery. The Cooperation Proclamation by Sedona is one of my favorite documents (and one of the hardest to realize successfully). When counsel for the parties and the court are all in sync on how to move forward and responsibilities are taken seriously time, money, and effort approaches the optimum (note this isn’t necessarily the minimum but I think many have already tried that and failed). If you can borrow a couple of lessons from Covery (“Begin with the end in mind” and “Seek to understand before being understood”) activities tend to go a lot more smoothly. It’s important that counsel advocate for their clients but not necessary for them to adopt the animosity that may be between them. Applying the tenets of the Cooperation Proclamation allows for discovery on the most relevant ESI, reduces the burden on the parties and the courts, and gets to the question of justice that much sooner; after all, isn’t that the real goal?
A second important paper in my mind is the one published by Sedona in 2008 regarding ESI and admissibility. It’s an important one to keep in mind and consider in parallel with cooperation and efforts to execute to the EDRM model. Making sure the ESI you preserve, collect, and produce is and will actually be admissible in court is an important factor. Working with ESI provides many more opportunities to “taint” what you have in a way that could be problematic when the client’s law day arrives. And you can’t go back – ESI obtained without using sound forensic techniques, inappropriate use of tools by the untrained, lack of awareness by counsel that results the loss of ESI are all very real issues that don’t necessarily come to light until much later and then it’s too late. If you “Begin with the end in mind” and consider that all the ESI may be evidence until decided otherwise (by counsel or the court if necessary) you are in a much better place. This will play into how you approach preservation and collection and, most importantly, how the process and subordinate activities are documented so that, instead of trying to recreate what happened, you are merely representing what actually happened.
The EDRM is a great development and it the effort has grown significantly over the years. It has become sort of a “ground truth” for e-discovery processes, procedures, and activities and provides a lot of benefit to the practitioner. I think the most fascinating step in the model is “Analysis”. Up to the analysis point you are really just collecting the facts and evidence that support them for representation later. In the analysis step is where the action begins; identifying who the players were/are, who knew what, what was being talked about, and what peripheral issues or other elements may be germane to the controversy. This is where umpteen years of development in computer based searching and evaluation of unstructured data really needs to be applied and tools are beginning to make an impact in this area. Of course, our profession moves somewhat slowly so acceptance in court will still take some amount of expert testimony and judicial review. But I think this is a key area not dissimilar to cyber security in that the goal is to get highly relevant, actionable information to the practitioner (attorney) in order to promote understanding of what actually happened, formulate conclusions as to cause and effect, and define a path forward to resolution. And the goal is to facilitate this resolution in a timely, effective, and cost beneficial manner.
I think one of the obvious lessons from this module is that e-discovery is here to stay and has a lot of growing up to do in both the information and legal professions. That being said, whether you are an attorney geek or an information technology legalist, the future looks good.
I am a Legal Secretary in Litigation at a major NY Law firm. I want to learn e-discovery to switch fields. Has anyone gotten a new career from taking these courses?
typo: “friened” (sic)
“EXERCISE: Write a summary to yourself (or a friened) of what you have learned from this class. This kind of writing assignment is something you might want to do throughout this course. It will be good to refer back to later.”
The only place I could find the whole quote was here. When I put the first part in quotes “Boredom is the enemy of education”, I find out that Tim Ferris, author of the 4 hour work week said it.
As soon as I saw the company name “SunBeam” in the Coleman case, I thought “How the heck old IS this case?” 2009. Which feels really old and not that old all at the same time. I found a 9 page appeal that summed up most of the facts at hand. That made it easier to read.
Zublake was full of concepts. One of which it feels like is repeated with the Alex Jones thing. Making sure your clients aren’t hiding information the other party has a right to. This case goes into some detail about how to prevent that.
Sorry about my Twitter handle. Usually I’m just upupand_adam. But I’m taking part in roasting Elon Musk with the rest of the internet. 🙂 Why let this moment in history pass me by?
I actually said it! Before him.