Professionalism and eDiscovery: Going beyond ethical considerations

During the last few years, there has been much discussion, and even some interesting debates, about ethical eDiscovery issues.  Much focus has been on the topics of duties to preserve records, duties to disclose records, and the state Rules of Professional Conduct.  But, I believe it is not sufficient to consider only the ethical issues involved.  We must also focus on the professionalism of eDiscovery.  Some of these professionalism issues are raised in discovery generally, but others are unique to eDiscovery.

I believe it nearly universally true that the most professional and ethical lawyers are usually the best lawyers.  They have either long ago abandoned, or never acquired a taste for, unprofessional conduct.  They have mastered their craft and find no use for unprofessional behavior.  The same could be said for business leaders; if they are not professional, others would rather do a business deal with someone else.

Attorney Civility Rules
Some states have developed civility rules that are guidelines only.  These rules are not intended to be enforced against lawyer conduct the way that the Rules of Professional Conduct are enforced.  However, these are excellent guidelines for ensuring that lawyers maintain professionalism in eDiscovery.

Included in New York’s Standards of Civility rules are standards are obligations to be “courteous and civil in all professional dealings with other persons.”  This includes a requirement that lawyers “should act in a civil manner regardless of the ill feelings that their clients may have toward others” and “[l]awyers can disagree without being disagreeable.”
The New York Standards of Civility also state that “[a] lawyer should not use any aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging or increasing litigation expenses.”  ESI requests are particularly prone to abuse in this area as it can be used to harass and increase litigation expenses.

Everything I Really Need to Know I Learned In Kindergarten.
In Robert Fulghum’s popular essay about what he learned in kindergarten, he discussed a few basic principles that both lawyers and businesses should abide by.  Included among those are basic professional principles like “share everything,” “play fair,” “don’t hit people,” “clean up your own mess,” “don’t take things that aren’t yours,” “say you’re sorry when you hurt somebody,” and “live a balanced life.”  A healthy dose of these basic ideas would serve the lawyer well in eDiscovery practice.  Although the pressing matter may seem most important at the time, conduct will create a reputation, and an unprofessional reputation is difficult to lose once it is gained. You can play fair while vigorously representing your client.


What Professionalism Should Govern eDiscovery Practice?
In eDiscovery circles, there is much discussion taking place about “proportionality.”  Essentially, this is an issue of reasonableness.  I believe reasonableness is also an issue of professionalism.  Recall that the scope of discovery is what is “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. Proc. 26(b)(1).  By narrowly tailoring requests to what is reasonable will enhance eDiscovery professionalism. eDiscovery costs should never be used as a way to bludgeon the opposing party into submission.   If ESI the scope of a request can be narrowed without harming a client’s case, then it should be narrowed.  The New York Rules of Civility state that “[a] lawyer should avoid discovery that is not necessary to obtain facts or perpetuate testimony or that is designed to place an undue burden or expense on a party.”


While many crack jokes about the professionalism and ethics of lawyers, most lawyers I know take both ethics and professionalism very seriously.  I believe that the best lawyers are not only ethical but highly professional as well.  Some clients act professionally as well, while others may will push for unprofessional practices.  It is the lawyer’s job to reign in his or her client.  While a lawyer must zealously advocate for a client, no case or client is ever worth squandering one’s reputation.  Never allow a client to cause you to do something unethical or unprofessional.


Lawyers involved in eDiscovery should strive for not only meeting the basic Rules of Professional Conduct but also the Rules of Civility.  By doing so, we serve the judicial system, our colleagues and our clients with integrity.

Labels: EDD, eDiscovery, electronic discovery, Electronically Stored Evidence, ESI, Law, lawyers, rules of civility

posted by Gene Petty @ 9:19 PM 0 Comments

Standards Need to Emerge for Collecting and Processing Electronically Stored Evidence (ESE)

Most litigators and their litigation support staff that have been practicing over the past 5-10 years could probably teach a class on the process of preservation, collection, processing, review and production of paper evidence. Or, at least they could stand at a whiteboard and draw a basic workflow diagram of the basic steps.

However, with the dramatic and accellerating increase in the amount of Electronically Stored Information (ESI) which I like to call Electronically Stored Evidence (ESE), the subsequent technical issues and the associated changes to the Federal Rules of Civil Procedures (FRCP), very few, if any of the same litigators and their staff, can now even describe the most basic workflow to to get ESE for a trial. Therefore, although many are talking of their importance (myself included), eDiscovery standards of any substance, are a long way off.

This is certainly not the fault of the lawyers as they have never been required to have much of true understanding of the technology of processing evidence in order to be successful litigators. However, the bar has now literally been raised and litigators can't even provide adequate representation without an indepth understanding of these new issues.

Maybe we should consider requiring a license or some type of ceritification to practice law when eDiscovery is involved? Or, has ESE become so intertwined in our matters that there isn't a case without eDiscovery and therfore every lawyer that want to litigate anything should have to be certified?

As a place to start this discussion / debate, we need to start identifying the basic components of ESE and how it is stored, how to preserve it, how to extract it (the new word for collection), how to process it, how to review it, and how to produce it.

Wouldn't it great if 5 years from now, litigators could stand at a whiteboard and diagram and explain the basic "standard" components of the workflow for processing Electronically Stored Evidence (ESE)?

Eric P. Blank addresses these issues in an excellent article titled,"The Need for E-Discovery Standards: A Call From the Trenches", posted on October 5, 2009 on the EDD Update Blog.

Eric P. Blank is the founder and managing attorney of Blank Law + Technology PS. His practice focuses on electronic discovery counseling, e-security response planning and implementation, investigations and computer forensics. Mr. Blank has conducted more than 300 investigations into computer and software-related torts and employee misconduct since 2001 and has frequently been a court-appointed special master or neutral in e-discovery matters.

The full text of Mr. Blank's post is as follows:

Most discussion about standards in electronic discovery focuses on the big-picture issues of scope, cost and cost shifting.

These are important questions eloquently argued in the courts. However, they overlook the mundane, pick-and-shovel e-discovery concerns that affect every case. I’m talking about the elementary technical issues of preservation, extraction, processing, review and production.

I’m talking about extracting data from electronic storage media, processing the data and its metadata into a document review software application platform, supporting the review and producing the data as discovery or evidence.

Outside the e-discovery world, the first stage of this process is known as Extract, Transform, Load (ETL). Identifying and overcoming the challenges of ETL have occupied computer scientists for decades. Principal obstacles to effective ETL include widely diverse and poorly documented storage repositories, asynchronous multimedia platforms, constantly evolving software, hardware and software anomalies, and human error, usually with respect to initial planning.

E-discovery vendors on the ground face those obstacles and more. Consider, as just a few of many examples, the following:

Mobile phones and PDAs: In some models, data can be extracted through forensic imaging. In others, such as many of those without SIM cards, data can only be pulled through live file extraction. Click here and here to read my earlier blog posts about the difference between forensic imaging and live file extraction. In any case, the question is this: Should data extraction scope be defined by current technical capabilities, or should there be a single common standard – such as live files only – for those instances when mobile phones and PDAs are subject to e-discovery?

A multitude of file types: Extraction and processing applications address dozens, sometimes hundreds, of file types. These file types are usually associated with, and identified by, a particular file extension, such as .doc or .xls. However, custom extensions are easy to apply – documents I create might have a .epb file extension, for example – and it is also simple to apply a nonstandard extension to a particular file type (e.g., a .doc extension to a PDF file). These are often missed, or improperly processed, by extraction and processing software.

Computer forensics software in the hands of an experienced technician can reveal documents by file type without relying on extension format and such, but doing so is costly and time consuming. What checks should be done for mislabeled or unusual file extensions? When are such checks required?

Metadata: Most of us think of metadata in basic terms such as the putative author, creation date, modification date, last-access date and so forth. However, metadata varies widely across data types. Microsoft Office documents, for example, have more than 100 metadata fields. It is also possible to create custom fields with many document types. Nearly all of these, such as the ubiquitous P-size and L-size, are nearly never important in civil litigation.

“Nearly never” is not, however, the same as “never.” Such data can be extracted, but it is not, as a rule, supported by processing software, which renders it unavailable at the attorney review level. Is it possible to agree on which metadata fields should be preserved and processed? When they should be processed? Which fields are important forensically? When all fields should be preserved?

Rapid technological change: Software is updated all the time. This affects how metadata is produced and the appearance of electronic documents. Processing software hasn’t kept up. It’s also inconsistent. For example, the last-access date on a Word 2007 document running in Windows Vista is affected differently than an Office XP Word document running on Vista. Both documents, however, are processed the same, as if the metadata means the same, when it does not. How should inconsistencies like this be addressed? What should the typical approach be?

Webmail: Screenshots of Web-based email services such as Hotmail are a common and inexpensive workaround to downloading actual Hotmail files. Which method is preferred? Is either method not preferred? As third-party cloud data repositories multiply, what constitutes best practices with regard to extraction methods will become a critical question.

Capture rates: What percentage capture rate is acceptable for processing software? Many files are often not processed by even the best technology, and must be laboriously hand processed. In a million-item processing job, a 1 percent miss rate equals 10,000 documents not processed and available for review. Is 99 percent acceptable? Is 98 percent? Note: If you think that the processing rate for your document review software is 100 percent, you’re kidding yourself.

Searching: Keyword searching, including keyword searches supported by “fuzzy” search techniques, are giving way to conceptual searching, which is the future of document search and review. Conceptual searching, however, involves proprietary algorithms and processes with a wide range of accuracy. What standards must conceptual searching meet to be accepted? How are these standards applied? When, if ever, is conceptual searching disallowed?

File format: In e-discovery today, most documents are produced in .Tiff format. Putting aside the larger question of whether .Tiff should be the standard for producing electronic documents, what about documents such as spreadsheets that don’t translate well into .Tiff files? In what format should presentation-type documents be produced? As slide shows? As workbook copies with notes and presenters’ comments? How are native files to be tracked and authenticated as a best practice?

Today, e-discovery consultants decide many of these questions on their own or after consulting with litigation counsel. In essence, a consultant decides when it is and isn’t practical to extract files from a system, whether to image a particular hard drive and whether to put aside as unreadable a back-up tape from a set of tapes that must be searched.

Much of the time, the consultant makes the “right” decision, as subsequently decided by the court, the client or the opposing party. It’s a rare consultant, however, who won’t admit that adopting e-discovery standards would bring enormous benefit to the practical challenges of data extraction, processing and production.

I'll be discussing these and other issues in the future. Any of the problems mentioned above could be an entire article. I look forward to working with the legal and technical community to address these “technical” standards – as opposed to the widely discussed “strategic” standards which may ultimately be addressed by changes in the Federal Rules of Civil Procedure.

Labels: EDD, Electronically Stored Evidence, Electronically Stored Information, ESE, ESI, Federal Rules of Civil Procedure, FRCP

posted by Charles Skamser @ 9:20 AM 0 Comments

Is Your eDiscovery Tool Missing Something?

Over the past couple of months, I have been getting an increasing volume of inquiries from law firms and corporate legal departments asking what is an acceptable  percentage of Electronically Stored Evidence (ESE) for today's advanced eDiscovery tools to miss.  My immediate response is that they shouldn't miss anything.   However, after further reflection, this is actually a pretty good question.  And, a question that today's advanced eDiscovery tool vendors need to be prepared to answer accurately and honestly with a answer that litigators and the courts can understand.
Being in the middle of the paradigm shift in eDiscovery with all of the new eDiscovery technology for Early Case Assessment (ECA), concept search, advanced transparent key word search, de-duping, near de-duping, email threading and all of the new computer forensics tools and document review tools, sometimes I forget that it may not all work as advertised.

So, although this wasn't really on my radar screen this week, I am now planning to do some research into how the eDiscovery tools are actually performing and what the percentage of missed documents might actually be.  The areas that I plan to cover are as follows:

1. What file types cannot be processed by the new Early Case Assessment (ECA) Tools?
2. What types of embedded files can and cannot be detected and unraveled by the new Early Case Assessment (ECA) Tools?
3. What What file types cannot be processed by the legacy eDiscovery tools?
4. What types of embedded files can and cannot be detected and unraveled by the legacy eDiscovery tools?
5. What type of exception reporting is provided by all of the eDiscovery tools?
6. Do these exception reports list all files that the tool could not process or could they actually miss files?
7. What methods (automated / manual) are available to address the exceptions / missed files?
8. What best practices  are available to ensure that no Electronically Stored Evidence (ESE) is missed?
9. What is the most recent case law dealing with this topic / issue (e.e. Rule 702 and others)?

I will post what I find over the next week.  And, as always, I would encourage the army of eDiscovery Bloggers to pitch in and comment on this topic as appropriate.


 

Labels: Early Case Assessment, ECA, eDiscovery, Electronically Stored Evidence, Electronically Stored Information, ESE, ESI, Rule 702

posted by Charles Skamser @ 11:53 AM 0 Comments