Opposing Perspectives in Document Review - Lexbe...Opposing Perspectives in Document Review |...

Opposing Perspectives in Document Review

Gene AlbertLexbe LC

May 21, 2015

Contrasting Plaintiff & Defendant eDiscovery Priorities

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Opposing Perspectives in Document Review | eDiscovery Webinar Series | May 21, 2015

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Lexbe is an Austin, TX based eDiscovery software and services provider.

○ Lexbe eDiscovery PlatformLexbe eDiscovery Platform is a fully-features eDiscovery processing and review tool. Users can load a variety of file types, process for review, OCR for search, and conduct document reviews, productions, prepare for depos & analyze transcripts, conduct case analytics, prepare for dispositive motions, and provide litigation support during trial.

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eDiscovery Webinar SeriesQuestions & Technical Issues



○ CEO of Lexbe LC, 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 Texas (2005)JD, Southern Methodist University (1983)BA, University of Texas (1979) Gene Albert

[email protected]

https://www.linkedin.com/pub/gene-albert/0/88/ba1

eDiscovery Webinar SeriesGene Albert Bio





● Is Discovery Different for Plaintiffs and Defendants?

○ Asynchronous eDiscovery

○ Differing Resources

○ Contingency Arrangements

● Examining Plaintiff and Defendant Discovery Concerns

● Top Takeaways for Plaintiffs and Defendants

Agenda


Defendant's View of Plaintiff’s Production Request

Asynchronous Discovery

Defendant's View of Plaintiff’s Production

1 GB = 50,000 pages = 14 Bankers Boxes1 TB = 50 Million pages = 14,000 Bankers Boxes



Differing Resources

● Defendants are often the larger organization, with greater financial, institutional, and facility resources.

● In eDiscovery, this manifests itself as larger, ongoing internal IT departments and litigation support staff, or greater resources to hire vendors.

● Due to the nature of plaintiff work, it is difficult for these firms - and uneconomical - to match the internal IT/litigation support resources of defendants

● This creates a fundamental difference in how the two sides approach the discovery lifecycle.



Contingency Relationship

● Plaintiffs frequently work under a contingency arrangement with their clients.

● This increases the overall risk of any large case expenditure and complicates the plaintiffs ability to value their case heading towards trial.

● Discovery expenses often involve significant front-end outlays, which - by themselves - can motivate a plaintiff to settle or drop an otherwise strong case.

● Whereas defendants usually bill hourly, and are often paid independent of case outcomes, contingency plaintiffs may only collect after a successful case outcome.



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.

From Craig Ball, Is There a Right to Fail in E-Discovery?https://ballinyourcourt.wordpress.com/



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?https://ballinyourcourt.wordpress.com/



Relative eDiscovery ConcernsPlaintiffs Defendants

Planning Medium Medium

Document Collection Low High

Early Case Evaluation/Valuation High Medium

Resp/Priv Review & Production Low High

Ingesting Opposing Production High Low

Evaluation of Received Production High Low

Search Quality and Speed High Medium

Fact/Timelining/Depo Capacities High Medium

Trial Support Medium Medium

Collaborative Capabilities Medium Medium

Expert/IT Assistance Medium Low

Cost Controls High Medium



Planning

● Defendants and plaintiffs both benefit from early stage planning in both discovery and their case as a whole.

● Plaintiffs need to identify as many relevant custodians and ESI sources as possible to prepare for the construction of ESI orders at Rule 26 and other discovery conferences.

● Defendants should anticipate potential custodians and ESI sources and develop integrated collection and review strategies.



Planning



Document Collection

● Asynchronous discovery is most evident in the area of document collection.

● Plaintiffs may have a fraction of the collection obligations of defendants and so document collection is not as large a concern.

● Defendants’ collections are usually a much larger concern and expenditure. Failing to defensibly hold, collect, review, and produce responsive documents to plaintiffs in a timely manner result in severe negative ramifications and sanctions.



Early Case Evaluation● Before a production has been received from opposing counsel, but

after ESI orders have been developed, there is an opportunity for both sides to evaluate evidence to date and the relative strengths of their cases.

● For Defendants, this may be less critical to do early and less significant because they are in a defensive position and often cannot end or settle the case without engaging in at least some discovery to determine the validity of the Plaintiffs claims. Defendant’s main priorities in early case evaluation are to begin identifying key case facts and ensuring collection procedures comprehensively capture key documents.

● Plaintiffs focus on early case evaluation because it significantly influences risk analysis and the decision to proceed with the case or seek early settlement or even abandon prosecution. Assessing the value of their case is a constant task for Plaintiffs and the time preceding receipt of an opposing production is a good opportunity to evaluate custodians and preliminary case facts.



Early Case Evaluation

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



Responsive/Privilege Review & Production

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

● Defendants’ discovery revolves around responsive/privilege review and production and so significant time and resources are invested in the appropriate people, technology, and processes to meet obligations.

● Defendants 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



Ingesting Opposing Production

● 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.



Ingesting Opposing Production

○ Iteratively received productions can be coded and organized by custodian and document source.

○ Upload and process received productions in a variety of formats



Evaluation of Received Production

● Both Plaintiffs and Defendants need to evaluate any new documents with respect to their existing case. However, this issue primarily concerns Plaintiffs.

● Receiving parties need to build an accurate understanding of the size and content of a received production to deploy the appropriate review resources.

● Parties benefit from being able to identify potential underdelivery or specifically requested documents that are not included in the production using automated tools.



Evaluation of Received Production

● Identify potential holes in received productions.



Search Quality & Speed

● Search speed and quality is important to any party that needs to find specific content within a large collection of documents.

● Though search may be fast, the underlying indexing method will determine if results are comprehensive. Incomplete search results means that important case data cannot be practically found - a major obstacle if dealing with any significant amount of ESI.

● Parties need be confident that their review tool search indices are comprehensive, or else miss finding the “smoking guns” in their case.



Search Quality & Speed

Index Method

Captures Embedded

Text

Captures Text

Excluded From Print

Captures Hidden Text

Imaged/OCR Yes No No

Native Extraction No Yes Yes

Lexbe Dual Index Yes Yes Yes

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



Fact/Timelining/Depo Capacities

● Both sides use fact & issue timelines to create textual and visual chronologies of their case and prepare for depositions and motion practice.

● By starting to develop fact & issue timelines early on in the case and iteratively developing as documents are reviewed and insights gained, parties can maintain an accurate understanding of the value of their case.

● When approaching depositions, parties need to know which documents relate to potentially negative case facts so they can preempt opposing depo strategies.



Dynamic Fact/Timelining Capacities

● Both parties benefit from being able to 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.



Trial Support

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

● Both Plaintiffs and Defendants benefit from tools that allow rapid timeline updating based on live case testimony.

● A best practice for either side is prioritizing accessibility to case data and documents throughout the trial and appeal process.



Collaborative Capabilities

● Both Plaintiffs and Defendants need to work closely with in-house counsel, co-counsel from different firms, experts, and others.

● Legal document management systems that are simultaneously secure against unauthorized access, yet are accessible to authorized users remotely, support effective collaboration.

● Local discovery solutions (e.g., ‘single-computer’ or ‘behind the firewall’) can cause collaborative bottlenecks and headaches when non-local members of the litigation team are unable to reliably access the review environment.



Expert/IT Assistance


● Both Plaintiffs and Defendants need access to knowledgeable IT experts. Important for collection strategies, data mapping, Rule 26, ESI orders, production evaluation and ongoing on-call assistance.

● Defendant counsel often can (and needs to) work closely the internal IT staff of the organization. Greater resources may also mean greater access to outside eDiscovery vendors for assistance.

● Plaintiff counsel also needs access to IT and eDiscovery experts, but often must go to vendors as the Plaintiff itself may not have that expertise.


Cost Controls

● Both parties prioritize reducing costs and maximizing the efficiency of available resources.

● A common defense strategy is to attempt to force Plaintiffs to expend their available resources early in the case. Discovery is a good opportunity to attempt.

● Plaintiffs are constantly evaluating the value of their case with respect to available resources and so controlling costs can determine the viability of a case.

● Defendants can typically afford to operate ongoing IT resources because their budgets are somewhat independent of case outcomes.

● Plaintiff firms’ revenues are often entirely dependent on case

outcomes. Plaintiffs need to know when their case is out of reach so they can minimize financial loss.



Plaintiff Attorney Top Discovery Tips● Quickly get preservation letter 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, if need native data/metadata.

● 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.



Defense Attorney Top Discovery Tips● Map Custodians and ESI early and determine case strategy taking ESI

collection, processing, review and production into account. Quantify discoverable ESI as early as possible as this will drive review and production timelines and budget.

● Tie down discovery obligations in an ESI order. Involve organization’s IT dept early and have available for Rule 26 conferences, etc.

● Document and disclose activities in eDiscovery to show transparency and reasonableness of methodology and to defend proportionality.

● Customize review methodology by case and need. It’s not ‘one size fits all’. Make use when appropriate of modern technology in document review, including keyword enhancements, near-duplicate groupings, and technology assisted review (e.g., predictive coding’).

● Build in time for adequate privilege review. Use modern tools to make for more effective privilege review (e.g., neardup groupings, enhanced search, dual indexing).



Summary● Discovery is fundamentally different for Plaintiffs and

Defendants for three main reasons:

○ Asynchronous eDiscovery

○ Differing Resources

○ Contingency Relationship

● Through each case stage, Defendants and Plaintiffs have different priorities based on the nature of lawsuits and availability of resources.

● Specialized eDiscovery tools and methodologies that take these differences into account are available, but Defendants and Plaintiffs value different features.



Thank YouContact Info

Gene Albert: [email protected](512) 686-3382

Stu Van Dusen: [email protected](512) 843-7672

Webinar Questions: [email protected]








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