eDiscovery Essentials for the Plaintiff Lawyer - Lexbe · Defendant produced a document dump of...

eDiscovery Essentials for the Plaintiff Lawyer

Proven techniques to obtain the evidence needed to successfully build your case

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About Lexbe

We’re an Austin, TX based provider of highly affordable cloud-based eDiscovery software and services provider, specializing in serving boutique law firms and organizations. We provide:

● The Industry’s Most Affordable and Full-Featured DIY eDiscovery Platform● The Industry’s Fastest eDiscovery Processing & Document Review Software● Experienced eDiscovery Specialists and Expert Consultants

Gartner Customer Reviews

“Secure, easy-to-use and a great review tool for consideration”

“A powerful litigation document management service”

“Cost-effective eDiscovery”


Guest Speaker

● CEO of Lexbe, a provider of cloud-based litigation processing, review and document management software & eDiscovery services

● Frequent speaker/author on eDiscovery and legal technology issues

● Planning Committee, Electronic Discovery Institute, State Bar of Texas

● eDiscovery consultant & expert

● EducationMBA, University of TexasJD, Southern Methodist UniversityBA, University of Texas

Gene Albert512-686-3460

[email protected]

https://www.linkedin.com/in/gene-albert



Agenda


● Why Is eDiscovery different for plaintiffs?

● Specific plaintiff concerns

● Planning for success with custodian identification, data mapping, early case assessment

● Marshalling your evidence with proper collection, processing, search

● Handling holes in productions, data dumps, hot docs, fast motion responses

● From ESI to evidence, facts and proof

● Top takeaways


Opposing Perspectives on eDiscovery

Asynchronous Discovery

Defendant's View of Plaintiff’s Production Request

Defendant's View of Plaintiff’s Production

1 GB = 50,000 pages = 14 Bankers Boxes 1 TB = 50 Million pages = 14,000 Bankers Boxes


Plaintiff’s Complaints about Productions

● Important ESI sources were missed or hidden.

● Culling and responsive searches were awful and missed clearly responsive documents.

● Important documents emerged only after depositions.

● Defendant produced a document dump of largely irrelevant ESI.

● Defendant used insane eDiscovery vendor estimates to justify proportionality claims.

● No understanding of forms of production and production problems.

Defendant's production was junk.



Defendant’s Answer

● Plaintiff’s vague and overbroad requests was nothing more than a fishing expedition.

● Defendant spent a fortune collecting and producing ESI.

● Because Plaintiff’s fishing expedition failed, Plaintiff seeks to make the case about discovery.

● Because Plaintiff’s fishing expedition failed, Plaintiff is trying to question Defendant’s competency in collecting and producing ESI.

● Plaintiff needs to show proof of inadequacy of production, not guesses and unsubstantiated allegations.

Where’s the proof of inadequacy and failure produce?

From Craig Ball, Is There a Right to Fail in E-Discovery?

CraigBall.net



eDiscovery Workflow: Selected Issues


Custodian ID &ESI Data Mapping

Run Production Apply Facts & Issues

Setup & Planning Collection Upload &

Processing Production Depos, Motions/TrialReview

Exhibits for Depos, Motions, Trial

Annotated Version

Export Privilege Log

Comprehensive Search & Browse

Document Dumps

Finding Hot Docs

Using NearDupes to Find More

Native ESI Upload/Ingestion

Opposition Upload/Ingestion

ESI SourcesEvaluation & Initial Timelining

Legal Hold Notice

Rule 26 Confer &ESI Order /Protocol

Methodology

Novel Issues

● Cases are evaluated before acceptance and constantly re-evaluated as evidence develops.

● Accurate assessment and evaluation is even more important with contingency cases.

● Early marshalling of available evidence and relating to intended jury instructions is the best way to begin to develop facts and issues that must be established.

● Rapid analysis of other documentary evidence that is received through eDiscovery supports accurate and timely updating of the case evaluation.

Early Case Assessment & Evaluation


Case Issues and Participants


● Plaintiffs can evaluate their case early on by researching preliminary case facts and issues as well as determining key case participants/custodians.




Facts, Issues, Dates, Evidence Links

ESI Data Mapping


What is Data Mapping?● Organized map of potentially relevant data sources. ● Contains information about custodians and corresponding data sources.

Why Data Map?● Avoid omitting potentially relevant custodians, data sources and evidence● Determine accessibility by source ● Increase awareness of data● Identify data that may be missed● Judges love it

How to Data Map?● Interview data custodians● Request in Rule 26 Meet & Confer● Take depo of an entity representative or custodian of records● Document each repository● Keep up to date

ESI Data Mapping


Legal Data Mapping is not an IT Network Map

ESI Data Mapping Tools


Data Mapping Log

Lexbe’s data mapping log is maintained in an Excel workbook using forms for data entry in conjunction with tables and charts for reporting.

ESI Data Mapping Tools


Data Mapping Reports

Who, When, Why, What

● Opposing Counsel, Third parties, own Custodians.

● ASAP to stop routine & non-routine document destruction.

● Raise issues of data repositories for Rule 26 discussions, proportionality, etc.

● Raise issues of how collection will be done.

● Preserve arguments for adverse inferences and sanctions if not preserved.

● Customize to case specifics and data repositories needed to prove case.

● Proliferation of ESI in many data sources requires iterative approach to ID all needed repositories and sources, such as databases, cloud email, smart phones, social media, etc.

Legal Hold Notices & Preservation Letters


Legal Hold Notices & Preservation Letters


● Preservation and Holds

● Data sources and Mapping; company systems used

● Document retention/deletion policies

● Relevant claims, defenses

● Employees with potentially relevant data

● Third parties with ESI

● ESI Volume. Proportionality issues?

● Collection methodology. Custodian self-collection?

Issues for Rule 26 ‘Meet & Confers’


● Culling/Data Reduction methodologies

● Review methodology, search terms, TAR?

● Productions, formats, loadfiles

● Native versions, metadata

● Privilege review methodology? Log timing

● Confidential, AEO data, procedures

● Technical liaisons for each party

Advantages of Using

● Proactive management of document-intensive cases

● Streamline electronic discovery and avoid unnecessary disputes and case delays

● Increase ability to obtain key evidence in your case

● Can tie in with Rule 26 ‘Meet and Confer’ process or independant

● Sample order at Lexbe site

ESI Agreement/Order/Protocol


● Preservation, collection and culling

● Not reasonably accessible ESI

● Use of search terms, TAR

● Metadata production requirements

● Duplicates and deduplication

● Databases

● Form of production and native files, metadata

● Parent-child relationships

ESI Agreement/Order/Protocol


Subject Matters● Bates numbering and confidentiality,

AEO embossing and naming

● Load file specs

● Extracted text/OCRed text

● Exception files/placeholders

● Privileged information, logs, In-camera review of documents subject to a privilege claim

● Redaction

● eDiscovery liaison

● Multiple repositories per each Custodian possibly. E.g., work

computer, laptop, smartphone, cloud email account(s), IM services, social media accounts.

● Organization repositories include email repositories, shared network drives, databases, cloud storage, backups, recycled computers.

● Data map helpful as guide and check.

ESI Collection - Sources


● Who is Collecting?○ Forensics provider○ 3rd party eDiscovery provider○ Organization IT personnel○ Custodian self-collect

● What is Collected?○ Forensic drive image○ Non-forensic drive image○ Directed collection○ Keyword searches

● How Collected?○ In-person○ Searching and culling on enterprise devices○ Remote collections (in-person and network devices)

ESI Collection - Methodology


● Unusual Data sources○ IM/text messaging○ Databases (accounting, CRMs)○ Social Media

● Data Not Reasonably Accessible & Cost-shifting

● Proportionality Requirement - FRCP 26(b)(1)○ No longer ‘reasonably lead to relevant/responsive information’

Factors○ Importance of the issues at stake in the action○ Amount in controversy○ Parties’ relative access to relevant information○ Parties’ resources○ Importance of the discovery in resolving the issues○ Whether the burden or expense of the proposed discovery outweighs

its likely benefit

ESI Collection - Other Issues


● Due to the asynchronous nature of eDiscovery, issues with ingesting productions is an issue faced primarily by Plaintiffs.

● The main concern of plaintiffs is being able to quickly upload a large production that could be in a number of different formats into a document management system so that Plaintiff review teams can begin searching for key documents and evidence.

● Plaintiffs may also receive iterative, relatively small collections over a period of time and need to have methodologies and tools that reduce or eliminate inefficient batching and allow for efficient integration.

● Plaintiffs may need to process a received production to make them systematically reviewable.

ESI Upload/Ingestion & Processing


Client Native Files

ESI Upload/Ingestion & Processing - Client Natives

○ Usual routine emails, Office files, etc.

○ Drag and drop to platform

○ Processes , creates PDFs, extracts metadata, etc.


Opposition TIFF Loadfiles


● What is a TIFF Loadfile?○ Structured text or database type file that references document files○ Associates metadata and other information○ Specifically for use in Litigation review software

● What’s Included?○ Document and email metadata○ Document breaks (for single page TIFFs)○ Email family associations○ May map to multiple versions of files (e.g., TIFF,

Text, PDF, Native)

● Popular Formats○ DAT (Concordance, Ringtail, Relativity)○ DII (Summation)○ LFP (iPro)○ Excel XLSX (Lexbe can import all loadfile types)

TIFF Loadfile - DAT Original


þBEGDOCþþENDDOCþþBEGATTþþENDATTþþATTACHMENTþþPARENTIDþþRECORDTYPEþþDATESENTþþTIMESENTþþDATERECEIVEDþþTIMERECEIVEDþþFROMþþTOþþCCþþBCCþþSUBJECTþþDATECREATEDþþTIMECREATEDþþDATEMODIFIEDþþTIMEMODIFIEDþþFILENAMEþþFILEEXTENSIONþþSOURCEFILEPATHþþPAGESþþVOLUMEþþORIGINALSPATHþþTEXTPATHþþPDFPATHþþENRON 0000001þþENRON 0000001þþþþþþþþþþeEmail þþ05/26/2000þþ10:19:00 AMþþ05/26/2000þþ10:19:00 AMþþJohn J LavoratoþþJohn Zufferli{John Zufferli}þþþþþþMolson adþþþþþþþþþþ2000-05-26 10:19:00AM - Molson adþþ.msgþþjohn_lavorato_000_1_16\Top of Outlook data file\lavorato-j\John_Lavorato_Jun2001\Notes Folders\All documents\2000-05-26 10:19:00AM - Molson ad.msgþþ1þþVOL01þþ\ORIGINALS\0001\ENRON 0000001.msgþþ\TEXT\0001\ENRON 0000001.txtþþ\PDF\0001\ENRON 0000001.pdfþþENRON 0000002þþENRON 0000002þþENRON 0000001þþENRON 0000002þþþþENRON 0000001þþAttachment þþþþþþþþþþþþþþþþþþþþþþþþþþþþmolson-canadian-i-am.movþþ.movþþjohn_lavorato_000_1_16\Top of Outlook data file\lavorato-j\John_Lavorato_Jun2001\Notes Folders\All documents\2000-05-26 10:19:00AM - Molson ad.msg\molson-canadian-i-am.mov.1þþ1þþVOL01þþ\ORIGINALS\0001\ENRON 0000002.movþþ\TEXT\0001\ENRON 0000002.txtþþ\PDF\0001\ENRON 0000002.pdfþþENRON 0000003þþENRON 0000003þþþþþþþþþþeEmail

TIFF Loadfile - Delimit and Convert to Excel


Finding Holes in Productions


Use Case Assessment Reports to locate:● Low document volume per Custodian (GB or count)● Low document volume per Doc Type (GB or count)● Low document volume per Master Date (GB or count)

Finding Holes in Productions


Export data to Excel to perform multi-level reporting: ● Document volume per Extension broken down per Custodian● Document volume per Year broken down per Custodian● Document volume per Extension broken down per Date

Search and Quality Speed

Search Quality and Speed

● Dual Search UberIndex ensures that all of the contents of a document are searchable and viewable


Index MethodEmbedded

Image in Text

Text Excluded

From PrintHidden

Text

Imaged/OCR Yes No No

Native Extraction No Yes Yes

UberIndex Yes Yes Yes

Responsive/Privilege Review & Production

All Document Versions in Viewer


● Hits - Highlighted from search● Original - Native if available● HTML - Extracted text from native● Page - One page at a time● PDF - Full viewing & access● Text - OCR of images● Produced - Versions Bates-stamped● Redacted - Confidentiality● Translated - For foreign language● Annotated - For depos

What is a Document Dump?

Dealing with Document Dumps


1. Perfect Precision & Recall

3. Low Precision, High Recall, aka excessive False Negatives aka Under-Production

2. High Precision, Low Recall, aka excessive False Positives aka Over-Production or Data Dump

4. Low Precision, Low Recall, aka Junk

Responsive Non-Responsive

Dealing with Document Dumps


Proactive Strategies

● Be careful about agreeing to broad keyword and TAR methodologies

● Statistically test for excessive false positives (low recall)

● Ask ahead for volume of ESI expected

● Make sure your eDiscovery vendor and software can load and make searchable fast

Reactive Strategies

● Abandon a linear review of all docs

● Use keyword searching to review important documents, hot docs

● Filter and focus on important custodians, issues, doc types, etc.

● Make sure Native and OCR text is indexed for search. Make sure natives are available.

● Explore fruitful data repositories like IMs, text messages

● Explore fruitful file types like Powerpoints (speaker notes)

● Understand organizational slang, abbreviations, culture

● Review redacted docs for over-redaction

● Search for profanity (see Lexbe search spreadsheet)

● Search for possibly interesting emails and texts like ’delete after reading’, ‘call me’, ‘take this offline’

● Follow neardupe docs

Strategies for Finding Hot Docs


Hot Docs - Follow NearDupes


● Near Duplicate Detection, or ‘NearDupe’, technology automatically recognizes similar documents within an eDiscovery document collection

● Examples: Separately scanned documents; multiple versions of a Word document that are slightly different due to minor edits, reformatting, etc.; an original document and one with handwritten notes on it; emails continue a conversational ‘chain’ or ‘thread’.

Unstructured Documents NearDup Groupings

Hot Docs - Follow NearDupes


● Follow NearDupe trail of Hot Docs

● Reviewing documents for responsiveness and privileged/work product content is often the most resource intensive task in litigation and is another example of asynchronous discovery requirements.

● Plaintiffs may have a significantly reduced document collection responsibility and therefore responsive/privilege reviews and productions are sometimes relatively simple.

● Plaintiffs can approach responsive/privilege review with multiple methodologies, including linear, keyword, and technology assisted reviews (e.g., predictive coding), neardup identification, and can choose to internally staff or rely on outside contract reviewers or managed review companies to complete.

Responsive/Privilege Review & Production


Timelining & Depo/Trial Prep


● Link specific documents to particular case facts & issues.

● Annotation capabilities let you create a separate version of key documents with alerts to particular lines, sections, quotes, etc.



Integrated Timeline Uses

○ Witness Prep and Cross+ Comprehensively prepare your witnesses+ Be better prepared to cross and discredit opposition testimony

○ Transcript Analysis + Structured fact extraction is more functional than depo summary+ Relate key transcript facts to other location in depo or other depos+ Relate also to supporting exhibits and other evidence

○ Case Evaluation & Settlement Negotiations + Close tie-in with original documents, notes and coding



Integrated Timeline Uses

○ Client Meetings+ Help clients during case progression to see how strong their case is.

+ Assists in maintaining an accurate, ongoing case valuation.+ Helps witnesses see how their testimony fits into the bigger picture.

○ Motion Practice + Dispositive motions happen quickly; finding key evidence is challenging.+ Having key evidence previously identified, organized and linked to documents allows for quick effective response.

○ Trial Support + Keep timelines updated during testimony to allow for effective and fast cross and support. + Basis for Time-based trial graphics for juries and judges.



Examples



Open Documents from Timelines

○ Link in Timeline opens document in Doc Viewer



Fast Motion Practice



Find and Filter Facts & Issues


● Parties need to maintain searchable access to case documents that may be brought up by opposing counsel during trial.

● Allow instant timeline updating based on live case testimony.

● Access to case data and documents throughout the trial and appeal process.

Trial Support


● Quickly get holds/preservation letters out to Defendants.

● Be careful to understand ESI Agreement commitments/limitations, and don’t agree to limitations when more is needed. Don’t accept PDF or TIFF alone in a production require native data/metadata.

● Map your and opposing Custodians and ESI early.

● Understand and participate in defense counsel’s review and production methodology. Understand defense’s data maps and systems.

● Quickly analyze incoming productions for adequacy and document data holes to resolve as soon as possible.

● With large incoming productions, determine what review/coding methodology will be used for the case. Linear review of every document may not be possible in large document cases.

● Have IT/Lit Supports experts available as needed for strategy, review of ESI

commitments and orders and to assist in assessing production adequacy.

Top Takeaways for Plaintiffs

Learn More About Lexbe


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‘Secure, easy-to-use and a great review tool for consideration’

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Request a personalized demo and expert consultation today!

1-800-401-7809 x22 | [email protected]

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Uber IndexNative Text & OCR Text

Facts & IssuesDepo/Trial Prep

Thank You for Attending


We’ll be making the following available to webinar attendees:

● A recorded streaming version● MP3 podcast● PDF

Please let us know if you have any questions or comments about this webinar or suggestions for future topics. This webinar is part of the Lexbe eDiscovery Webinar Series. For notices of future live and on-Demand webinars as part of this series please email us at [email protected] or Follow us on LinkedIN.

Moderator:

Presenter:

Jeff [email protected](512) 653-8295

Gene [email protected](512)686-3382

Webinar Questions: [email protected]

http://lexbe.com/resources/ediscovery-webinars/?LEX=WebinarBestPracCloudeDisc

https://www.linkedin.com/company/lexbe?LEX=Webinar-PDF-151028-eDiscProc


eDiscovery Essentials for the Plaintiff Lawyer - Lexbe · Defendant produced a document dump of...

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