The Conceptual Search Game is Finally On!!

I have been writing (probably preaching to some) about advanced search technology, the differences between conceptual search and keyword search and the importance of advanced search technology in both the Early Case Assessment (ECA) and document review phases of eDiscovery for the past 3 years.

Concept Search Cash Law Emerging http://ediscoveryconsulting.blogspot.com/2008/06/concept-search-case-law-emerging.html
Concept Search vs. Keyword Search http://ediscoveryconsulting.blogspot.com/2008/12/concept-search-vs-keyword-search-in.html
Litigators Need ESI Analytics – Not Boolean Search Tools http://ediscoveryconsulting.blogspot.com/2010/05/litigators-need-esi-analytics-not.html

However, I have been somewhat disappointed in regards to the level of adoption of true conceptual search technology by the leading Litigation Technology vendors.  That appears to be changing.  As an example, in a June 17, 2010 post by StoredIQ titled, “Email Search: Nowhere to Hide”, the author provides an overview of StoredIQ’s search technology with specific focus on Natural Language Processing (NLP).  The reason that I am pointing this out is that 12 months ago, StoredIQ would not have been spending marketing dollars or Blog space on Natural Language Processing (NLP) because the market didn’t know what it was and didn’t care.

In this Blog post, StoredIQ now contends, “Probably of greatest interest to litigators during the discovery process is StoredIQ’s ability to perform natural language processing (NLP), which is the ability to extract linguistically derived natural language concepts from within email and user files including people, places and things. Legal teams can immediately search using over 250 out-of-the-box concepts and attributes including credit card accounts, social security numbers and stock symbols. NLP identifies word usage based upon context within a sentence. For example, NLP can identify if the word ‘will’ is used to identify a person’s name, a legal document or an auxiliary verb showing intent. StoredIQ has proprietary technology for adaptive sentence boundary disambiguation (ASBD) which substantially increases the precision of Natural Language Processing to address common grammatical deficiencies that are present in many business documents. No other information management technologies have this capability. NLP is a critical capability necessary to accurately perform eDiscovery, records management or risk management as full text indexes alone cannot provide the required level of precision.

Interestingly enough,  in my discussions with General Counsel and their litigation support teams from the Information Technology departments over the past 6 months, I have found a new awareness and appreciation for true conceptual search or semantic search or NLP.    So, StoredIQ is on the right track with their current product  offerings and I would bet that they have a product roadmap with more of the same.

So, I guess the conceptual search game is on and the other litigation technology vendors had better take notice of what their clients are saying in regards to what search technology they need.

The full text of the  StoredIQ Blog post is as follows:

A recent article by Jacob Goldstein, 23 Things Not To Write In An Email, illustrates the type of granularity as well as breadth of keywords that can be used by litigators during the legal discovery process to search for relevant information. He points out some keywords that may raise a legal red flag and should be used carefully when constructing emails. However, today’s technology search capabilities provide such precise, complete and accurate results, that there just isn’t anywhere to hide.
For instance, StoredIQ’s advanced search capabilities can look within compressed files, email archives and email attachments, in addition to the text contained in the email message itself. It can also search non-printable text within a document or email and can search through comments and revisions. In addition to search using keywords, StoredIQ supports many advanced search capabilities including:

• Single term search
• Multiple term search
• Concept-based search
• Boolean operators
• Logical grouping of terms
• Wildcards within search terms or Boolean expressions
• Proximity searches
• Natural language entities
• Regular expressions
• Macro-based searches
• Object level attributes
• By hash value (digital signatures)

Probably of greatest interest to litigators during the discovery process is StoredIQ’s ability to perform natural language processing (NLP), which is the ability to extract linguistically derived natural language concepts from within email and user files including people, places and things. Legal teams can immediately search using over 250 out-of-the-box concepts and attributes including credit card accounts, social security numbers and stock symbols. NLP identifies word usage based upon context within a sentence. For example, NLP can identify if the word ‘will’ is used to identify a person’s name, a legal document or an auxiliary verb showing intent. StoredIQ has proprietary technology for adaptive sentence boundary disambiguation (ASBD) which substantially increases the precision of Natural Language Processing to address common grammatical deficiencies that are present in many business documents. No other information management technologies have this capability. NLP is a critical capability necessary to accurately perform eDiscovery, records management or risk management as full text indexes alone cannot provide the required level of precision.
I know a lot of these terms can be a mouthful, but the underlying take away is that legal teams have the technology to precisely and accurately search electronic data, including email, making it much easier for litigators to discover data that was at one time hidden from them.

Labels: Conceptual Search, Early Case Assessment, ECA, eDiscovery, email, Keyword Search, Natural Language Processing, Seach Technology, Search Terms, Semantic Search, StoredIQ

posted by Charles Skamser @ 11:59 AM 0 Comments

Doesn't Everyone Already Know About eDiscovery?

It's been over 2 years since the changes to the Federal Rules of Civil Procedure (FRCP) took effect, spawned a whole new industry called ediscovery and changed the face of litigation forever. So, since I have been living and breathing eDiscovery and watching this "eDiscovery Paradigm Shift" from ground zero and helping the "early adapters" wade their way through the morass of issues and technology, it appears that I may have lost some perspective in regards to the fact that no everyone in the legal market or in enterprises across the globe are worrying about eDiscovery compliance. How could that possible be?

Well, whether intended or not, that point was made clear to me by Rick Dales, Vice President of Product Management at Proofpoint, through an article that he had published on the Computer Technology Review site titled, "Is Your Company Ready for e-Discovery?: What FRCP Can Mean for Your Business and How to Prepare."

This article is well written, very informative and would be a great resource for the novice, uninformed IT director as an introduction to the requirements for managing Electronically Stored Information (ESI) in 2009. It may also qualify as required reading for any litigators or anyone associated with enterprise information management that been in a coma for the last 36 months.

In all seriousness, it is really easy for those of use who spend most of our waking hours working within the eDiscovery market to forget that eDiscovery is a fairly new discipline and that there are more professionals that don't know about it or haven't thought too extensively about how it will effect their operations and business than have.

So, maybe I am the one that has been living under the eDiscovery rock and maybe its time for me to realize that the rest of the world has not yet had the pleasure of experiencing the thrill and excitement of eDiscovery.

The full text of the article is as follows:

Electronic Discovery (or e-Discovery) refers to the producing, obtaining and reviewing of digitally stored electronic evidence in response to civil litigation. With the passing of the Federal Rules of Civil Procedure (FRCP), it’s a new era in which organizations are challenged with how to face the increasing pressure to proactively manage the retention and handling of various forms of corporate records and data for compliance and legal discovery purposes.

The first step to addressing this challenge is for enterprises to be aware of what is required under FRCP. Next, businesses should prepare themselves for compliance by ensuring the ability to retrieve and analyze terabytes of data upon request. With new advances in technology, this crosses an increasingly expansive landscape, including: email, instant messages, handhelds, laptops, enterprise networks, databases and SMS. By proactively addressing FRCP challenges, enterprise IT staffs can ensure a seamless process should the need for legal discovery ever arise.
What Is the FRCP?
The FRCP governs the conduct of all civil actions in US Federal District courts. Although the most recent amendments to the FRCP were made over a year ago, many companies are not familiar with what is required of them by law. Enterprises should be concerned about these new amendments because, unlike most data retention requirements that are industry specific (such as the NASD and SEC rules for financial institutions and broker-dealers), the FRCP applies to organizations in all industries.

Proper data retention is no longer just a best practice – it’s a legal obligation. If electronic data is not properly managed, corporations face serious consequences that include hefty fines or imprisonment, making it particularly important for business decision-makers and IT administrators to understand the new amendments. To prepare for e-discovery, organizations must adopt a complete approach to managing all types of data so that it can be easily searched and retrieved when necessary.

The Amendments and Their Implications
Recent FRCP amendments require companies to retain all their corporate correspondence, including electronically stored information (ESI), so that it can be produced in a timely and complete manner. As such, litigation readiness has become an increasingly important IT responsibility. The following is a summary of the amendments that impact e-discovery and reinforce the need for email archiving.

Rule 16: Pretrial Meetings
Requires all parties to meet and discuss a discovery plan and evaluate the preservation and production of ESI.

Rule 26(a): Duty to Disclose
Requires parties to identify all sources of ESI that may be relevant by category and location.

Rule 26(b): Discovery Scope and Limits
Every organization has “a duty to disclose all potentially relevant sources of information” to the courts as soon as they “reasonably anticipate” litigation unless these sources are “not reasonably accessible because of undue burden or cost.”

Rule 26(f): Planning for Discovery
Requires opposing parties to meet before the trial, or at least 21 days before a scheduled conference to discuss the nature and basis of their claims in an attempt to speed the possibilities of a prompt settlement.

Rule 34(a): Producing Documents
Electronically stored data – including email – is one of the types of records which can be requested for inspection by opposing parties.

Rule 34 (b): Procedure and Form of Production
As a part of the discovery process, the responding party should provide a “proposed plan for discovery” and produce all requested information, including ESI, in a form that is “reasonably useable.”

Rule 37(f): Sanctions for Failure to Make Disclosures or to Co-operate in Discovery This rule creates a “safe harbor” protecting a party from sanctions arising from its deliberate deletion of ESI as long as it was deleted “as a result of routine, good faith operation of an electronic information system.”

Complying with the Amendments
In an effort to be proactive, businesses should develop an organization-wide approach to understanding and organizing ESI. However, many storage managers do not have the technology in place to properly produce information such as corporate and personal email records, attached files and instant messages. According to a recent survey conducted by Osterman Research, about one third of IT managers surveyed admitted that they could not produce an email over a year old.

The research showed that only a small number of organizations have a corporate retention policy in place and one fourth of these companies deleted their emails within 90 days of being stored. The lack of policies for items such as personal emails and the inability to locate each and every place where corporate or personal email data could reside can cause serious problems for companies that need to produce all relevant information during e-discovery or regulatory audits. These findings demonstrate that over a year after the amended FRCP, most organizations are not fully prepared to comply. To meet these requirements, organizations must develop a sound email policy that can be implemented and maintained with an effective email archiving solution.

Are You Prepared?
To evaluate your organization’s litigation readiness, IT managers should ask the following:

Do you have an email retention policy?
Your records management policy must address the different types of electronic documents that may be created in a corporate environment. It is critical that email policies provide adequate instructions to employees regarding their duty to preserve email and the manner, method and location of preservation.

Are you confident that your email retention policy is being enforced?
Simply having an email retention policy is not sufficient to meet the FRCP requirements. Organizations must ensure that the policy is enforced and that all copies of email are disposed of once they have reached their retention period. Implementing an effective email archiving solution within your organization will allow you to set retention policies that are automatically enforced so that regular electronic data is not kept longer than necessary and relevant data (such as emails that have been placed on litigation hold) is preserved for a longer period of time.

Do you know where all copies of corporate email are stored? Can you easily access them?
As the FRCP amendments require full disclosure of relevant ESI and their location, organizations must clearly disclose to staff the acceptable locations for storage of business records. By specifying in the email policy that all electronic records can only be stored in the corporate email server (and the accompanying corporate email archive), businesses can dramatically simplify this process.

Can you enforce a litigation hold?
The FRCP requires businesses to place a litigation hold on any information that may be relevant to a case as soon as they “reasonably anticipate” litigation. Placing a litigation hold ensures that any existing or future electronic records related to a particular lawsuit are preserved indefinitely, even if past the stated retention period. Most companies do not have the storage resources to handle this, nor do they have the ability to put data on hold within short notice. An email archiving solution that is equipped with a litigation hold capability can address this concern by allowing organizations to automatically put relevant records on hold so that they are preserved for the duration of the litigation.

Do you have the tools to search through every email sent or received for legal discovery purposes within 30 days of an order?
Electronic messages are typically stored in many different locations. For purposes of litigation, companies must be able to quickly sort through all this email data. The simplest and most effective way of achieving this is to ensure that electronic records are stored in a searchable format in a centralized location. Most email archiving systems have an advanced search capability which allows the legal department to easily search through the full text and attachments of all email in order to quickly respond to legal discovery requests.

If you answered ‘No’ to any of the above questions you need to sit down with your IT team and legal counsel as soon as possible. In order to be in compliance, appropriate solutions need to be in place before it is too late.

Labels: Data Management, Document Rentention Policy, eDiscovery, email, Federal Rules of Civil Procedure, FRCP, IT, Litigation Readiness

posted by Charles Skamser @ 8:59 AM 0 Comments

Document Retention Policies and Practices

I recently found a checklist for Document Retention Policies and Practices written by Cecil A. Lynn III, Director of Industry Relations at LexisNexis Applied Discovery. And although this list is not comprehensive, it provides an extremely strong foundation up which to build your organizations list. Following is his list:

1. Maintain Document Retention Policies And Practices.
Every company should have a comprehensive, regularly audited document retention policy. The policy not only sets forth the procedures for the uniform and timely destruction of documents - both electronic and paper - but also establishes a consistent plan that is applied company-wide. A good document retention policy coupled with vigilant enforcement may be a company's best defense against claims of spoliation of evidence. The Federal Rules offer safe harbor for companies that lose data during the routine, good-faith operation of their electronic information systems. See FRCP 37(f). The "routine" requirement may be evidenced, in part, by a document retention policy. Counsel should review the company's retention program to ensure that it is current, applies to all employees in all locations, and is regularly monitored and enforced.

2. Understand The Corporation's Electronic Information Systems.
Case law underscores the need for outside counsel to become familiar with their client's electronic information and data retention architecture. See Phoenix Four Inc. v. Strategic Resources Corp., 2006 U.S. Dist. LEXIS 32211 at * 16-17 (S.D.N.Y. 2006) and Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004). The responsibility is even greater for in-house counsel who often provide a necessary link between the company's information technology (IT) department and outside counsel. Thus, corporate legal departments should develop a solid working relationship with the company's IT department and an understanding of the company's IT systems. Such an understanding is vital to the successful implementation of a document retention policy and will prove invaluable in evaluating preservation efforts in litigation.

3. Implement And Monitor Litigation Hold Procedures, When Appropriate.
The notion of document and information preservation is not something new to corporations. Several regulations impose preservation requirements on certain companies for the retention of documents and, in some cases, impose criminal penalties for their unlawful destruction. At common law, a company has a duty to preserve documents and electronic data when it "knows or reasonably should know" that information may be relevant to pending or anticipated litigation. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Once litigation is anticipated, a party must suspend its routine document retention/ destruction policy and put in place a litigation hold to preserve what it knows, or reasonably should know, is relevant to the action. See Hynix Semiconductor, Inc. v. Rambus, 2006 U.S. Dist. LEXIS 30690, *66-67 (N.D. Cal. 2006) and Samsung Elecs. Co. v. Rambus, 2006 U.S. Dist. LEXIS 50007, *96-99 (E.D. Va. 2006).

Corporate counsel must determine appropriate trigger points for "anticipation of litigation" and develop litigation hold procedures to implement upon such triggers. See Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 at *23-24 (D. Co. March 2, 2007); see also Heng Chan v. Triple 8 Palace Inc., 2005 U.S. Dist. LEXIS 16520 at *16 (S.D.N.Y. 2005) (counsel has an obligation to monitor compliance with the company's preservation obligations). Counsel should be proactive and ensure that litigation hold procedures are being complied with.

4. Communicate With Key Custodians And Key Data Stewards.
When practical, counsel should communicate face-to-face with key players to make sure that they understand the seriousness of the preservation obligation and the consequences of destruction of potentially relevant evidence. Counsel should inquire about the potential witnesses's personal practices for document management and retention and determine whether it is consistent with company policy and determine whether the individual keeps potentially discoverable material on sources that are not online with the company's computer systems (e.g., home computer, PDA, pocket drive, etc.) Most importantly, counsel must explain the custodian's ongoing preservation obligation. A written litigation hold notice should be sent to these individuals that reminds them of their responsibilities under the company's document retention policy and specifically cautions them to refrain from altering, modifying or deleting potentially relevant information.

Counsel should also communicate with the "data stewards" - the IT staff who manage the resources on which key players create/store corporate data. Discuss whether it is appropriate or necessary to take a mirror image of the relevant storage devices and make sure that any auto-delete functionality is disabled. Counsel and IT should make sure that relevant active files are not deleted, converted to backup tape, or otherwise downgraded. Metadata should be preserved, even if the determination has not yet been made to produce it.

5. Establish An E-Discovery Committee.
In-house counsel should consider putting together a team with representatives from the IT department, records management, corporate compliance and the legal department to develop and implement an action plan for litigation involving electronic discovery. This team will be responsible for keeping the legal department apprised of procedural or staff changes that impact document retention policies, including any litigation holds in place. The IT representatives would advise of the latest technologies acquired by the company that impact data storage or relate to the company's document retention program.

Counsel may also want to interview and train potential Rule 30(b)(6) witnesses, ideally members of the committee who have knowledge and can effectively articulate their expertise with all aspects of the company's computer processing and storage capabilities.

6. Implement A Plan To Maintain Data Formats And Map Data Sources.
Electronic information can be maintained in a variety of formats and on multiple types of media. Corporate counsel should work closely with the IT department to determine how information is preserved and whether data is converted or degraded for storage or archival purposes. Counsel should also be aware of the range of potential sources for relevant information and collaborate with IT to develop a "data map" which profiles the company's sources and locations of electronically stored information. A data map can set out in detail the company's different active data creation and storage systems and give valuable insight into the potential cost - in terms of time and money - of preserving and collecting the information. Data mapping profiles may include details about:

• the applications and file types in use at the company, including details on proprietary or unique applications and integrated databases - particularly business-critical applications or those which are likely targets of discovery;
• the range of electronic communications, such as: email, instant messaging, voicemail, and Voice Over Internet Protocol applications, and including details about server organization, physical locations, and backup protocols for each;
• network storage and file servers, including information about server organization, physical location, and backup protocols;
• workstation distributions and configurations;
• remote user set-up (i.e., are employees able to VPN in from their home computers?);
• distribution and use of mobile devices, including laptops and PDAs, with specific attention to whether data on such devices is captured or "synched" in any formal fashion.

7. Establish A Collection Methodology So That Responsive Data Can Be Securely Stored Prior To Processing, Review And Production.
There are several collection methodologies and technologies that can realize significant cost savings for corporations. In-house counsel should explore these techniques to determine if they are right for the company. For example, corporations can establish a "black box" service on which duplicate copies of relevant emails are automatically stored. The black box reduces the risk of deletion. If the company is involved in multiple pieces of litigation where the same documents are at issue, counsel may want to consider building a central data repository. Document repositories can save the corporation time and money as the company may need to review the documents only once and information about the documents such as relevance, privilege, Bates stamps and redactions can all be retained and reused in subsequent litigation.

8. Determine What Information Is Not Reasonably Accessible Due To Undue Burden Or Cost.
While the general rule is that parties may obtain discovery on any matter relevant to the claims or defenses involved in the case, see FRCP 26(b)(1), the rules offer limitations where data sources are not reasonably accessible due to undue cost or burden. See FRCP 26(b)(2)(B). However, even if the data sources are deemed not reasonably accessible, the court may still order production and set conditions on the requested production, including cost shifting. See FRCP 26(b)(2).

A data map will assist counsel in the determination of whether data sources are arguably not reasonably accessible. Counsel should also discuss the potential cost and burden with their IT department and a data collection specialist to determine whether selective restoration or sampling of inaccessible data is appropriate. For some data, restoration may still be cost prohibitive given the amount at stake in the litigation.

9. Take Proactive Steps To Prevent The Potential Inadvertent Production Of Privileged Documents.
The sheer volume of electronically stored information that may be produced in litigation increases the risk of inadvertent production of privileged or protected documents. However, there are steps that corporate departments can take prior to litigation to reduce the risk of inadvertent production. If practical, privileged documents can be segregated, coded, or tagged in the ordinary course of business thereby reducing the risk that they will be commingled with non-privileged data. Boilerplate tags and footers that read "attorney-client privilege" may be insufficient to identify a protected document, particularly if the tag is automatically and indiscriminately applied to every email generated from a particular user.

10. Communicate Regularly With Outside Counsel.
In-house counsel must fully understand the company's preservation, collection and production procedures relating to electronically stored information and be able to discuss them with their outside counsel. This is particularly important in the beginning stages of litigation when the parties meet and confer under Rule 26(f). In-house counsel may want to be present during this conference to assist outside counsel. Of course, the extent of counsel's involvement may vary depending upon the size and complexity of the case, the amount of the controversy, the location of the litigation and the volume of potentially relevant data.

As corporate counsel get more involved in the corporation's litigation matters and document retention policies and practices, they will feel more confident and comfortable with the electronic discovery-related changes to the Federal Rules of Civil Procedure. Education and communication are two keys to litigation preparedness. Both will make certain that the legal department can make reasonable and defensible choices regarding the collection, preservation and production of documents in litigation.

Labels: Data Map, Discovery, Distruction of Evidence, Document Rentention Policy, eDiscovery, eDiscovery Consultants, EDRM, email, ESI, FRCP, Metadata, Preservation, Zubulake

posted by Charles Skamser @ 3:23 PM 1 Comments

Qualcomm Inc. v. Broadcom Corp, 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

In a possible response to the question that I posed in my last post of whether or not the Zubulake rulings are still relevant, Broadcom has recently been awarded over $8 Million in Attorneys Fees and Qualcomm’s Lawyers have been referred to the California State Bar Due to Discovery Misconduct.

This may be the answer to whether Zubulake continues to have "teeth" in regards to the responsibilities/critieria of legal teams to produce or not produce ESI. Or, it may just be an example of the ignorance and/or arrogance on the part of the Qualcomm legal team? However, it is hard to believe that anyone involved in such an important case would be ignorant to the requirements set down by Zubulake.

This case, which is rapidly taking on the legendary status of Zubulake, involved the failure by Qualcomm’s attorneys to turn over 46,000 e-mails, many of which were deemed highly relevant to Broadcom’s core defenses. Qualcomm brought the suit in 2005, alleging Broadcom’s infringement of several of Qualcomm’s patents. One of Broadcom’s key defenses hinged on whether Qualcomm participated in a Joint Video Team (“JVT”) in 2002 and early 2003.

Broadcom argued that evidence of such participation would show that the patents at issue were unenforceable due to waiver. Throughout the case, Qualcomm’s lawyers repeatedly argued (and its witnesses testified in depositions) that Qualcomm did not participate in the JVT in the key time period. As the case progressed, however, e-mails surfaced that suggested that Qualcomm did, in fact, participate in the JVT in 2002. While preparing for trial, one of Qualcomm’s attorneys found an e-mail sent to one of Qualcomm’s witnesses in 2002 that welcomed her to a mailing list related to the JVT. That attorney then searched the witness’ laptop and found 21 other e-mails, some from 2002, where the parties discussed issues related to participation in the JVT. None of these e-mails had been produced to Broadcom.

Nevertheless, Qualcomm’s trial team decided not to produce the e-mails, claiming that they were not responsive to the discovery requests. During trial, Broadcom discovered the existence of the e-mails and Qualcomm finally produced them. Ultimately, Broadcom learned that Qualcomm had more than 46,000 e-mails responsive to the discovery requests that it failed to produce.

On January 7, after a number of oral arguments and an initial ruling by the court awarding attorneys’ fees, the court ordered Qualcomm to pay Broadcom over $8.5 million in attorneys’ fees (with credit for amounts already paid in response to a previous order) and referred a number of Qualcomm’s attorneys to the State Bar of California for an investigation in to possible ethical violations.

Labels: Broadcom, Discovery, email, ESI, Litigation, Qualcomm, Sanctions, Zubulake

posted by Charles Skamser @ 10:03 PM 0 Comments