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Summaries, news and resources relating to eDiscovery in Delaware and beyond.
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This is the seventh in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
Mechel Bluestone v. James C. Justice Cos., C.A. No. 9218-VCL(Del. Ch. Dec. 12, 2014).
My colleague, Thomas Hanson, previously summarized Mechel Bluestone in an article written on December 23, 2014 which discussed the need for senior Delaware counsel to guide and be closely involved in the preparation of privilege logs and to promptly respond to deficiency letters. The article can be read in its entirety here: http://www.morrisjames.com/newsroom-articles-357.html.
To recap, here are the seven most important eDiscovery cases in Delaware in 2014 (in chronological order) along with their key takeaways: More ›
This is the second in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
The second case is 112359 Factor Fund, LLC and Five Nine Group, LLC v. Flux Carbon Starter Fund, LLC, Mary Carroll, Kevin Kreisler, and James L. Sonageri, C.A. No. 9568–VCL, Telephonic Oral Argument on Plaintiffs' Motion to Compel and Rulings of the Court, 06/20/2014.
In response to Plaintiffs' Motion to Compel, the Defendants claimed they did not have sufficient time or resources to review all 73,000 documents yielded by the search terms used. Vice Chancellor Laster was not swayed by these arguments. An Order had been entered earlier in the case requiring the parties to not only meet and confer regarding search terms, but to also "do more than the standard" and "confer regarding the use of an early data assessment tool…to focus on the custodians and time periods most likely to have responsive electronic documents”. Defendants’ reasons for missing the production deadline included delays in collecting the documents from their clients and insufficient manpower to properly review them. The Vice Chancellor found these explanations to be insufficient. The Court explained that in an expedited case, the parties need to think about approaches other than the “old school attorney-by-attorney review”. Had an early data assessment tool been appropriately used, as instructed, the number of search hits would not have come as a surprise and counsel could have thought ahead and planned appropriately to meet the discovery deadlines. The Court ordered that a copy of the transcript be given to Defendants clients, to help them understand that not complying with a discovery order will have serious consequences. More ›
The Court of Chancery continued to focus on eDiscovery throughout 2014. During the next few weeks we will be recapping 7 cases that covered various topics including preservation, designation of confidential material and the drafting of privilege logs. We will cover the cases in chronological order.
The first case is Sustainable Biofuels Solutions, LLC v. Tekgar, LLC and Michael Catto, C.A. No. 8741--VCP, Oral Argument on Plaintiff’s Motion to Compel and for Sanctions, Defendants’ Motion to Dismiss, and Rulings of the Court, 01/28/2014
In this dispute between a joint venture entity and one of its founding members, Plaintiff filed a Motion to Compel based on Defendants’ untimely production of emails, their blanket designation of 21,000 produced documents as Attorneys’ Eyes Only in violation of a Confidentiality Order, and lack of transparency throughout the eDiscovery process.
Before addressing the Motion to Compel, Vice Chancellor Parsons first reminded the parties of the Supreme Court case Christian v. Counseling Resources Associates, where the Supreme Court put litigants on notice that if they act without Court approval in modifying a scheduling order, they do so at their own risk. By choosing not to involve the Court, the party waives its right to dispute the opposing party’s late filings going forward. The Supreme Court advised that the best way to still “avoid motion practice and ill-will by agreeing to reasonable extension requests…[is to] promptly file a proposed amended scheduling order for the trial court’s signature.”
The court next found that the Defendants had failed to comply with their obligations under the confidentiality order by designating over 21,000 documents as Attorneys' Eyes Only. Under the order, designation required review by an attorney and a good faith basis for such designation. The court stated that "there is no way that an attorney could have looked at these documents and made a reasonable determination that there was a good faith basis for designating them as Confidential - Attorneys' Eyes Only..." The Defendants stated that they received the documents from their client at a late date and thus were rushed in their review. This necessitated the overdesignation of the documents.
Given that Vice Chancellor Parsons felt the Plaintiff had notified the Court “pretty promptly” of the discovery issues and that the Defendants had failed to comply with their obligations under the Confidentiality Order, the Court imposed sanctions of $10,000 in attorneys’ fees against the Defendants and gave them a strict deadline to complete any necessary dedesignations. The Defendants were further ordered to answer the Plaintiff’s questions regarding how they unilaterally refined the agreed-upon search terms and exactly what files were searched and to generally operate with a greater degree of transparency.
Three key takeaways can be taken from this case. First, if an attorney is unsure of who to proceed on eDiscovery issues, he or she should reach out to a colleague or vendor for guidance and assistance. The Vice Chancellor wrote that “It’s not unusual in cases of this type and in many, probably the majority, of the cases in the Court of Chancery that electronic discovery is proceeding by way of search terms and searches of custodians. That’s the way it’s usually done. If it’s a surprise to any attorney…then that attorney needs to associate himself or herself with people who know what they’re doing and are more familiar with it.”
The second takeaway is that the court should be promptly informed of any agreement regarding changes to a CMO.
Finally, parties need to factor in the time it takes to actually review documents in order to avoid situations such as confidentiality or privilege overdesignations. Parties should give themselves more than enough time to factor in the perhaps most important step between collection and production...attorney review of documents.
The entire transcript can be found here: Transcript of Sustainable Biofuels v. Tekgar
A recent podcast from the Legal Talk Network's ESI Report addresses cost control, an important issue for any client, eDiscovery attorney, or eDiscovery vendor. As the sheer volume of collections continues to increase and as the complexity and variety of the data collected continues to complicate review and production, we look to new tools to streamline the process. "Nearlining" is one such tool.
Nearlining enables reviewers to set aside unnecessary data for potential use at a later time. As a review progresses and a reviewer deems certain documents non-responsive, he may nearline those documents, which reduces a client's data footprint without deleting portions of the collection. This allows reviewers to easily access and focus on the most relevant content, but also lowers costs for clients by reducing their footprint on vendor servers, thus reducing hosting costs.
It is suggested that the non-responsiveness of documents is confirmed through a quality control process before nearlining the documents.
For a full discussion or nearlining and several other cost-savings techniques, see below:
We lawyers have a tendency to confuse our terminology when discussing technology. This is especially true when discussing the technical aspects of eDiscovery.
I was inspired by the excellent Grossman-Cormack Glossary of Technology-Assisted Review which attempted to define the terminology surrounding TAR. I prepared the following short glossary of commonly used eDiscovery terms to assist our group in understanding some of jargon used by eDiscovery professionals. The terms can be found after the break. More ›
I believe I found this video by way of Ryley Carlock's Litigation Unbundling Ramp in Legal OnRamp. In it, Paul Ward briefly discusses the merits of "smart review"...
OK, maybe not, but it has been getting more action than usual. I've been following a running conversation recently on the use of project management (PM) software in the practice of law. The larger discussion on PM in the law is fascinating, and I highly recommend reading the whole conversation, but I only mention it here because the conversation touches on PM in eDiscovery at several points and provides some keen observations on that intersection. I've tried to extract and present those nuggets below.
Rees Morrison, author of the Law Department Management blog, got things going with his post "Project management software doesn’t necessarily mean the discipline of project management." The title says it all, and prompted a further exploration of the subject by Paul Easton at the Legal Project Management blog. Paul offered us his "Buying a Lathe Does Not Make You a Carpenter: Setting Realistic Expectations for Legal Project Management Software," in which he argues that using PM software doesn't mean you're doing true, standards-based project management.
The point that I would like to make in this post, however, is that implementing project management software does not equal implementing project management. Project management is not a tool. It is a culture built around a set of standards. It requires buy-in from an organization's shareholders and involves a lot of measurement, monitoring, training, and communication. Buying a lathe doesn't make you a master carpenter. Buying a case management application will not miraculously turn you into an effective lawyer. Similarly, buying a project management application does not make you a project manager.
That post was responded to at Lexician in "Rethinking Legal Project Management Tools." Author Steven Levy warns of the difficulty in applying PM to the practice of law generally but notes "Possible exception: project management/workflow tools to manage electronic discovery. If you do a lot of ediscovery work+management, you’re already using project management principles. Either that, or you’re not surviving." Let's say that again: If you're not applying PM principles to the management of eDiscovery, you're not surviving.
'OK, you've gotten my attention Steven. So how do I apply PM principles to my eDiscovery projects?' you ask. We're not quite there yet, but Steven explains the three levels of PM and why using tools alone won't help you get where you need to be.
Levels of project management:
- Scheduling, resource allocation, costs, dependencies, deadlines (not the same as scheduling), risks, and, to be honest, a certain amount of CYA.
- Managing the people and resources to control and achieve the stuff in Level 1.
- Understanding and influencing the overall system so that you can be effective at Level 2.
I’m warning you off the tools. The tools are designed for managing Level 1 issues, but they will fail absent a rich understanding of Levels 2 and 3... If you get caught up in the tools, I believe you’ll go down a path that leads to failure, departmental self-destruction, and the CYA that lurks at Level 1... Rather, begin at Level 3. Strive to understand the system in place. Only then can you realistically map project management techniques against the ground of the law practice. Only then can you figure out what pieces of project management you can mesh with the practice’s culture, its people, its operations and practices.
Sage advice for us PM grasshoppers. 'OK, makes sense. Now can you tell me how to get there?' you ask again. Steven offers us some simple starting points in "Low-Tech 'Tools' for Legal Project Management."
Paul Easton responded with "Project Management Tools in the Legal Environment: Can Old Dogs be Taught New Tricks?" Inside the larger discussion about the feasibility of implementing PM in law firms, Paul asserts that litigation support, and eDiscovery projects and processes especially, are the areas most amenable to PM implementations. He reasons:
Those working in litigation support, especially electronic discovery, already use a lot of software to manage their work. Also, they are used to having to measure and report on a number of metrics and making cost and schedule estimates--even if they are only using MS Excel. Most would find that specifically tailored project management applications would make their lives easier and would welcome improved and better documented procedures. That is, so long as the budget and resources necessary to properly implement the new procedures and applications are made available.
Steven Levy caps the discussion in "Professional Project Management in a Legal Environment," in which he observes that legal project management is already invading the eDiscovery space.
As I said, these are just the eDiscovery hooks in the larger topic of legal project management (LPM). I encourage you to read the whole conversation and to subscribe to these three highly informative blogs.
As I've noted previously, project management is rapidly gaining importance in the world of eDiscovery. Some argue (and I agree) that project management has many applications in the practice of law. Chief among the proponents of that prescient view is Paul Easton, author of the Legal Project Management blog. As you can imagine, I am a regular reader of LPM and was doubly excited to see Paul's recent 3-part series on Six Sigma in law firms. After commenting on Part 1 of the series, Paul emailed to followup on my comment about the use of PM and Six Sigma at Morris James, and he's been kind enough to post my reply as a standalone article. I'm honored. Thanks Paul, and keep up the great work!
I wanted to finish the "The State of eDiscovery in Delaware series before moving on to other subjects, but I've found it difficult (there's so many meaty issues to discuss) and finally cracked. Please indulge this short diversion.
First, a warm and fuzzy congratulations to Gabe Acevedo, author of Gabe's Guide to the e-Discovery Universe, for being invited to regularly contribute to the excellent EDD Update blog. Do yourself a favor and take a look at Gabe's first contribution. He'll be a great addition to EDD Update. I love reading Gabe's posts for his creativity and humor. (Want proof? Take a look at the title of his post announcing the launch of this blog.) Congrats Gabe! [UPDATE: I forgot to mention, I first found Gabe on Twitter (@GabeAcevedo) where you can follow him too. Also look for me on Twitter (@cspizzirri).]
Second reason for breaking the series: project management. "Of course," you say, "what lawyer wouldn't be excited about project management?" Well, only a few of us geeky types who like workflows and metric and statistics and whatnot, but that will change. There's a growing recognition of the importance of incorporating project management and other related techniques into the eDiscovery process to help control costs and reduce risks.
I began applying these techniques to our internal eDiscovery processes at Morris James several months ago and took up Six Sigma—with the guidance of a master black belt, mind you—more recently. Project management, quality control, sampling, etc. have been percolating to the top of the eDiscovery discussions, but when I saw a post about EDD and Six Sigma, well, I just couldn't contain myself anymore. Remember:
What you do not measure, you cannot control. -Tom Peters
We'll resume the regularly scheduled programming shortly.