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Developments in Litigation Technology: Early Sleuthing and Scoping

This article was featured in the October 2018 issue of ACC Docket. Here, the authors delve into the newest litigation technology advancements and how they can help legal departments save time and money. To learn about the 10 steps for early awareness and relevance/non-relevance selection, read the second part of the series.

I n litigation, the side that gets the earliest and best understanding of the underlying facts and how the evidence supports or undercuts key witnesses has a distinct strategic advantage. Fortunately, several trends are converging that make early case sleuthing and scoping more affordable and feasible than ever for cases of all sizes.

Cloud storage is increasingly inexpensive and highly elastic. Large volumes can be processed on demand for literally pennies per gigabyte without infrastructure investment. Geospecific cloud storage can keep data in country, avoiding many General Data Protection Regulation (GDPR) problems.

Secure bandwidth has increased. Large sets of data can be moved quickly, securely, and economically without physically shipping computer media.

Analytics software is becoming more ubiquitous. Corporations don't have to load email and documents onto expensive final review platforms to have comparable functionality (e.g., predictive coding, concept wheels, email threading, deduping, text search, etc).

Project-based virtual teams can come together just for the life of a project and include the expertise needed for any part of the project (e.g., database discovery or dealing with legacy applications). There is no need for large, ongoing headcounts.

Screen sharing applications permit quick, spontaneous meetings and information exchanges. Litigation teams can be assembled globally and can be much nimbler than only face-to-face meetings.

Pricing models have shifted from the old per-gigabyte or per-document models
Experts now provide technology at either no additional cost or may bill for direct out-of-pocket cost for things like Amazon Web Services hosting or processing fees — minor expenses compared to final review platforms.

These trends offer opportunities and solutions with distinct advantages over traditional methods of document review and predictive analytics.

Early sleuthing and scoping

Being able to collect, process, and analyze email and electronic documents for little or no cost allows lawyers to understand what information they have when deciding whether to settle or to negotiate on a preliminary scope for e-discovery. It also provides metrics to use in such negotiations.

The truth is that if corporations use people who understand robust software, they can find whatever they need in just about any collection of documents, without a lot of cost and heartache.

With the early investigation and scoping approach to e-discovery, outside counsel will be reading only relevant documents for intelligence and understanding, not just to make "in" or "out" relevancy decisions or apply "confidential" or "privileged" tags to documents.

Because early scoping is affordable, attorneys can do this as soon as the demand letter arrives. They can know before the case is filed what happened, who said what to whom, and whether to fight or settle.

For every pleading and subpoena, in-house counsel can quickly and inexpensively scope the task at hand by collecting the email for two or three highly relevant custodians and quickly see with whom they discussed the topics at issue.

This information can be used to not only negotiate the scope of discovery with the government or adversary, but also to inform you about who else really should be included as a custodian, based on the electronic evidence, not just supposition.

After the work is done and the relevant documents are produced, any questions by opposing counsel as to completeness can be quickly resolved with a screen share meeting with the lawyer who did the work, explaining the strategy and process for locating the documents.

As any trial lawyer will say, the story of how the process worked is much more defensible than any measure of recall or precision through sampling, which will always be less than 100 percent.

Basic e-discovery cost control


Here are some basic things that can be done to greatly lower costs without compromising quality. More information on the first three items is available in the ACC Docket article, "Ethics and E-Discovery Review," Jan./Feb. 2010, pp. 46-57:

DeNIST
As soon as possible, identify and exclude files that are created by and obtained from software providers as part of their software installations and updates. There is no evidentiary value in these files. The National Institute of Standards and Technology maintains a Software Reference Library that lists these files and their hash values that can be used to identify them.

DeDUPE
Don't have multiple instances of the same files repeatedly reviewed by different people. It's wasteful, and you risk inconsistent production decisions.

Thread emails
Emails and attachments that are part of the same email conversation or thread must be tethered together, so that they are read together by one person. This provides the overall context of the whole conversation and avoids inconsistent coding or designations.

Be transparent early
If sweeping discovery doesn't make sense, get on the phone with opposing counsel, and tell them what you're planning to do. Use screen share software to show examples of what you're talking about.

Get a divorce from per gigabyte pricing
Just as there is growing recognition that companies are better served by flat billing as opposed to per gigabyte pricing, e-discovery should be purchased on a largely flat-fee basis. As Jeffrey Carr has said, buy the right thing.

Use benchmarks
Participate in ACC and other forums for exchanging information about what recurring tasks

Examples

Here are some scenarios of how this new approach to technology-assisted awareness and processing can work.

Products liability — eye and skin irritation

You have a potential product liability situation where employees of a customer have complained about itchy eyes and skin from using the product at workbenches. Investigators from the National Institute for Occupational "key players" list, a chronology, and meaningful intelligence regarding what your client knew, or should have known, about irritated eyes and skin from using its products in a matter of days. Total professional fees at US$200 per hour are less than US$5,000.

DOJ price fixing investigation

You are dealing with a collection of 2.5 million documents queued for review in response to a Department of Justice (DOJ) subpoena regarding alleged price-fixing, and you are well aware that there will be subsequent civil litigation. You have service providers proposing techniques, including various forms of Technology Assisted Review (TAR), for prioritizing the documents so that those of lesser value are reviewed by less expensive lawyers in India. There are also proposals to test the results with sampling and measures taken of recall and precision.

It sounds great but it also sounds expensive, to the tune of several hundred thousand dollars per month, for many, many months. However, there are lower-cost alternatives now possible using cloud computing and lawyers skilled in using sophisticated investigative software. Assuming 10,000 documents per gigabyte, the collection you are dealing with is likely at least 250 gigs. At US$20 per gig, per month, the cost to process, host, and maintain the documents would be US$5,000 per month.

In addition, using the techniques mentioned in the "E-discovery proficiency quiz" below, such as domain name, file type analysis, and email name grouping, together with quickly finding and removing completely irrelevant and useless files (system files), the volume could be quickly reduced by as much as half — 1,250,000 documents and 125 gigs.

In an elastic cloud environment, this means that your server needs are reduced by half and your monthly costs go down to US$2,500 per month. With today's document analytics tools, it wouldn't take much to find out from the documents who was involved in making pricing decisions, their emails about pricing and who they were sent to and received from, and who they may have met with from competing companies.

Two lawyers skilled in using the software's analytics capabilities, with an understanding of the allegations and key players both within and outside the organization, could likely identify the relevant documents in 200-300 hours. At US$200 an hour, that is US$40,000 to US$60,000. After the production is made and the DOJ voices skepticism, those same skilled will screen-share with the Assistant US Attorneys and show them how and why they know they found and produced the responsive documents.

E-discovery proficiency quiz

Lawyers who can't make full hands-on use of the panoply of tools available to analyze electronic discovery are like dentists who can't personally use drills. They lose the ability to interact with the data and quickly gain insights from it. Here are some basic tasks that lead investigators or attorneys should be adept at handling.

Lead attorney/investigator
Each of the following tasks other than the keyword testing should take less than 10 minutes.

E-discovery proficiency quiz


Additional scenarios

Here are additional scenarios and how they might pan out using a strategic approach that leverages lawyers skilled in using state-of-art document analytics software in an elastic cloud computing environment.

  • Claim evaluation. You receive notice of a claim. By identifying principal players in the matter and doing a preliminary collection and processing of their email, you can quickly get a preview of how the case will play out. The costs to collect and ingest the email for a few of the individuals involved and to find out what happened for many cases, is less than US$1,500. As noted above, some consultants using Amazon Web Services do not charge for collecting or processing data, instead charging hourly for technical skills in using the software and finding the meaningful emails quickly (in some cases within a few hours).
  • Key employee departures. A key employee suddenly leaves. Collecting and processing their email can be done for no cost and, once it is in a cloud-based repository and used by someone skilled in its search features, the departed employee's email can be quickly organized and managed as needed, for less than US$2,000 in most cases.
  • Subpoena responses. Responses to information and document subpoenas that might have run up costs and fees over US$20,000 can now be responded to for less than US$5,000, including processing, hosting, review, tagging, and production.

Interactive sleuthing and scoping tools

These are five of the types of interactive displays that can be used for early sleuthing and scoping prior to putting content in a final review platform:

Interactive sleuthing and scoping tools

Potential TAR tunnel vision

An over-emphasis on TAR (a.k.a. predictive coding) as a way to solve discovery related issues can lead to two types of tunnel vision.

  • Tool focus. Focusing on the predictive coding type of TAR (classifying sets of documents based on classifying a subset of them) can lead to ignoring other proven tools like concept clustering, domain name analysis, social network analysis, or advanced search techniques.
  • Over-emphasis on review. Focusing on the review phase can cause lawyers to overlook opportunities for analysis and understanding much earlier in the litigation process. Document review may not take place for many months, if not years, after the suit was initiated, and that is simply too late to go hands-on with the documents. To the extent that corporations find TAR to be a useful way to gain understanding, they should consider using it before documents are placed in a final review platform. They can also use it to evaluate not just outgoing productions but productions from other parties as well.

Conclusion

Scoping the extent and validity of litigation claims provides huge strategic advantages in knowledge and reduced cost to the great benefit of the corporation. Best of all, it is affordable and practical.

About the Authors

Seth EichenholtzSeth Eichenholtz is an in-house lawyer and head of electronic discovery at Mastercard. Prior to Mastercard, he worked as an e-discovery consultant and managed e-discovery at Swiss Re. [email protected]

Tim DonovanTim Donovan is an A-rated intellectual property attorney who has held a number of positions as general counsel in large and small corporations in the technology and healthcare sectors. He is currently a legal advisor to a healthcare software vendor in Kansas City and an advisory board member for Advance Law. [email protected]

Anne KershawAnne Kershaw is a lawyer and consultant who has been immersed in e-discovery for many years. She co-authored Judges’ Guide to Cost-Effective E-Discovery, teaches at Columbia University, and has written earlier articles for the Docket on discovery topics. [email protected]


The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.