Writers Summit 09 - Why eDiscovery is a ProblemRalph Losey

Why e-Discovery is a Problem:Searching for Truth and Justice in

Chaotic Disconnected Information Silos

Ralph C. Losey

Friday, June 5, 2009

Lawyer: Shareholder and Chair of Akerman Senterfitt's e-Discovery Practice Group

30 years Litigation experience; last 3, only e-Discovery

Adjunct Professor, Univ. of Florida, School of Law, on e-discovery

Author: Introduction to e-Discovery: New Cases, Ideas and Techniques (ABA 2009)

E-Discovery: Current Trends and Cases (ABA 2008)

HASH: the New Bates Stamp, 12 Journal Technology Law & Policy 1 (June 2007)

Websites: e-Discovery Team (weekly blog): www.ralphlosey.wordpress.com

www.FloridaLawFirm.com (personal web on IT and Law)

Ralph C. Losey

Lawyer: Shareholder and Chair of Akerman Senterfitt's e-Discovery Practice Group

30 years Litigation experience; last 3, only e-Discovery

Adjunct Professor, Univ. of Florida, School of Law, on e-discovery

Author: Introduction to e-Discovery: New Cases, Ideas and Techniques (ABA 2009)

E-Discovery: Current Trends and Cases (ABA 2008)

HASH: the New Bates Stamp, 12 Journal Technology Law & Policy 1 (June 2007)

Websites: e-Discovery Team (weekly blog): www.ralphlosey.wordpress.com

www.FloridaLawFirm.com (personal web on IT and Law)

Ralph C. Losey

The Failure of Business to Adopt ECM is Destroying American System of Justice

No Justice Without Truth.

No truth if you cannot find the relevant evidence.

Most Trial lawyers Are Luddites

Here is what we all want.

Collection

Productio Presentat

ReviewTranslucent FillInformationManagement

Preservation

Collection

Analysis

Processing

Translucent FillPresentation

Analysis

IdentificaInforamat

Volume Relevance

ProductionIdentification

Electronic Discovery Reference Model

Collection

Productio Presentat

ReviewTranslucent FillInformationManagement

Preservation

Collection

Analysis

Processing

Translucent FillPresentation

Analysis

IdentificaInforamat

Volume Relevance

ProductionIdentification

In re Fannie Mae Securities Litigation _ F.3d _, 2009 WL 215282009, (D.C. App. Jan. 6, 2009).

‣$6 Million to Comply with an e-Discovery Subpoena

‣$6 Million to Comply with an e-Discovery Subpoena‣9% of Total Annual Budget of the Office of Federal Housing Enterprise Oversight

‣$6 Million to Comply with an e-Discovery Subpoena‣9% of Total Annual Budget of the Office of Federal Housing Enterprise Oversight‣400 keywords; 660,000 emails and attachments; 80% of all agency’s email

Today’s headlines

‣Former Countrywide Financial Corp. Chief Executive Officer Angelo Mozilo and two of his top deputies were sued by the SEC for allegedly hiding the home lender’s deteriorating finances as the subprime mortgage crisis unfolded.

Today’s headlines

‣Former Countrywide Financial Corp. Chief Executive Officer Angelo Mozilo and two of his top deputies were sued by the SEC for allegedly hiding the home lender’s deteriorating finances as the subprime mortgage crisis unfolded.

‣In one e-mail, he described a “particularly profitable subprime product as ‘toxic.’” He also wrote that Countrywide was “flying blind” and had “no way” to determine the risks of some adjustable-rate mortgages, the SEC said.

Review is Expensive

Cost to Review now runs about $5.00 per computer file.

Review is Expensive

Can range from $3.00 to $10.00 per file; Fannie Mae was $9.09

Review is Expensive

Can range from $3.00 to $10.00 per file; Fannie Mae was $9.09Review for relevance, privilege, confidentiality, issue tagging and Logging

Review is Expensive

Can range from $3.00 to $10.00 per file; Fannie Mae was $9.09Review for relevance, privilege, confidentiality, issue tagging and LoggingAver 16,000 files per gig = $80,000

Review is Expensive

the following facts are Typical:

Review is Expensive

the following facts are Typical:20 Custodians with 50,000 emails/attachments each = One Million ESI

Review is Expensive

the following facts are Typical:20 Custodians with 50,000 emails/attachments each = One Million ESIECM - weak or non-existent for email.

Review is Expensive

the following facts are Typical:20 Custodians with 50,000 emails/attachments each = One Million ESIECM - weak or non-existent for email.Relevance Search Culling reduces down to 10% = 100,000 ESI to be produced.

Review is Expensive

the following facts are Typical:20 Custodians with 50,000 emails/attachments each = One Million ESIECM - weak or non-existent for email.Relevance Search Culling reduces down to 10% = 100,000 ESI to be produced.Client still cannot afford $500,000 just to review emails.

Science of Search

‣Recall and Precision

Science of Search

‣Recall and Precision‣ In searching for potentially responsive documents, iterative validation should MINIMIZE false negatives and false positives.

Science of Search

‣Recall and Precision‣ In searching for potentially responsive documents, iterative validation should MINIMIZE false negatives and false positives.‣Jason baron - TREC Legal Track

Science of Search

‣Recall and Precision‣ In searching for potentially responsive documents, iterative validation should MINIMIZE false negatives and false positives.‣Jason baron - TREC Legal Track‣ traditional Negotiated

Keyword Search Usually Sucks (22% recall)

Science of Search

Keyword Search Usually Sucks (22% recall)‣ Multimodal and iterative

Sampling is the way

Science of Search

Keyword Search Usually Sucks (22% recall)‣ Multimodal and iterative

Sampling is the way

‣Judgmental and Random Sampling

Metrics and new Technologies/Methods

In re: Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. Aug. 21, 2007). “Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness. If AZ took such steps, it has not identified or validated them.”

QUESTIONS?

Writers Summit 09 - Why eDiscovery is a ProblemRalph Losey

Technology

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