This Blog to Become a Book! AND You Are Invited to Contribute to It!

I am very pleased to announce that the American Bar Association will soon publish a book based on this blog. It will be called e-Discovery: Current Trends and Cases. This will be, to my knowledge, the first time a legal blog has become a book, now sometimes called a “blook.” Although the book will not be exactly the same as the blog, it will be derived from and based on it. 

Thanks to all of you, my thoughtful blog readers, for the many encouraging comments and suggestions you have provided.  Your positive input and support led me to propose this project.  Thanks also to ABA Publishing for having the vision and energy to make it happen.

The ABA is rushing the book to print so that it will be available by December. That is extraordinarily quick for a book publisher, far faster than any of the other major legal publishers who also expressed an interest in the project. Due to the time-sensitive nature of this material, I felt that it was important to get to press quickly.  The ABA, which has been great to work with, is committed to making that happen.

So how can you be a part of this blog-to-book project? Leave a good, substantive comment on any of the blogs I have ever written, and it may be included in the book. One of the unique things about the new book is that it will include select comments by blog readers, and occasionally, my responses to these comments.  In a few weeks, I will have a chance to add a few additional blog comments to the final version of the book. So please, add your comments in the next two to three weeks and you may become a part of this blog-to-book project. Please do it now! 

As far as I know, this is also another first: an author opening up his book for anyone to review and add content to just before its publication. Take advantage of this opportunity and join me in providing content. This new field of law and technology is, or at least should be, both interesting and exciting. Help me spread the buzz by adding your ideas and insights. Keep it short and sweet, and your comment might make it to print.

Although comments will be anonymous and may be edited, the blog will remain online even after the book is published.  That means everyone will be able to access the blog and see the original comments, including commentators’ names when provided.  Another interesting thing about the project, one that I frankly did not expect, is that the ABA wants me to keep all of the blogs online, available to everyone for free, even though the book will be very close in content to the original blogs. They see the law blook as a win-win media convergence.  The ABA is following other mainstream publishers who, according to a Wall Street Journal article, have already discovered that blogs-to-books can be a recipe for success.

e-Discovery: Current Trends and Cases is expected to be about 90,000 words in length (including your comments). The blogs will be edited, and sometimes added to and rewritten, and then reorganized and presented by categories in Seven Chapters:

Chapter One – Introduction to E-Discovery
Chapter Two – New Ethical Standards for E-Discovery
Chapter Three – New Federal Rules of Civil Procedure
Chapter Four – Spoliation and Sanctions
Chapter Five – Metadata
Chapter Six – Search and Review of ESI
Chapter Seven – New Technologies

There will also be an Appendix with several useful reference materials, including the new Federal Rules of Civil Procedure on e-discovery.

I know from your feedback that the “blook,” like the blog, will be very accessible to all types of readers. Litigation attorneys with years of experience in e-discovery will enjoy the analysis and finer legal points. So too will sophisticated in-house counsel, and academicians. Still, the material is also very accessible to lawyers just beginning in this area, or those who just want to learn something about e-discovery, including paralegals, law students, and law firm IT support professionals. Since most of these blogs explore recent events and technology issues, as well as the law, they have also been of interest to many technologists and management professionals outside the legal profession. Many of my regular blog readers are non-lawyer IT experts and management involved in some way with e-discovery or general information management services.

If you like the blog, you’ll like the book too.  You will be able to order it online from the ABA as soon as it is released. If you would like, I can also endorse copies any way you want, just send me an email. They might make a good present for your clients and customers, and should be out in time for the holidays.

Again, my thanks to all of you, my law firm, and the ABA for helping to make this blog into a book, and thus spread the word even further of the interdisciplinary team solution to the many issues and challenges of e-discovery.

The Sedona Conference Releases Two New Must-Read Commentaries on “Email Management” and “Legal Holds”

The Sedona Conference has done it again and group-written two more excellent guides: one on Legal Holds, and the other on Email Management. Both were just released for public comment and may be downloaded from the Sedona website for personal use.

The Sedona Conference Commentary on Legal Holds: The Trigger & The Process (August 2007 Public Comment Version) provides much-needed guidance on an issue very troublesome to most large organizations: when and how to preserve ESI for purposes of litigation.  In their words:

The basic principle that an organization has a duty to preserve relevant information in anticipation of litigation is easy to articulate. However, the precise application of that duty can be elusive. Everyday, organizations apply the basic principle to real-world circumstances, confronting the issue of when the obligation is triggered and, once triggered, what is the scope of the obligation. This Article, intended to provide guidance on those issues, is divided into two parts: The “trigger” and the “legal hold.”

Once again, this is a group effort by a special committee of The Sedona Conference called the “Working Group on Electronic Document Retention and Production.” The Working Group includes many well-known experts on this tricky topic. Under the guidance of the group’s editors, Conor Crowley, Eric Schwarz and Gregory Wood, they agreed upon a set of eleven guidelines with detailed commentary on each. 

These are common-sense-type principles that will, I predict, be acceptable to most companies, although still challenging for many to implement. It is also likely that these guidelines will often be referred to by courts when reviewing the reasonability of a party’s legal hold activities in litigation.  If you can show that your organization made a good faith effort to follow these guidelines, then you will be in a strong position to argue that any loss of data that incurred anyway is not sanctionable.

The eleven guidelines include advice and language such as:  

Guideline 1 – notice of a “credible threat” of litigation as the trigger of the duty to preserve;

Guideline 2 – the “adoption and consistent implementation” of a written policy as a key factor to show reasonableness and good faith;

Guideline 3 – the need for established procedures to report potential litigation threats;

Guideline 6 – the need to issue a written legal hold notice in most circumstances; and,

Guideline 10 – the need for legal holds, once issued, to thereafter be “regularly monitored.”

Guideline 7 provides important input on the scope of a hold, including the key “proportionality” criteria that I have written about before, namely the consideration of the amount in controversy and related factors.

Guideline 7: In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered.

The proportionality factor in determining the proper scope of a hold is often overlooked, especially by some plaintiffs’ counsel who still routinely make outrageously overbroad preservation demands.

The comments to Guideline 7 also point out that accessibility is another important factor to consider in determining the proper scope of preservation. In fact, the wording of Guideline 7 in the commentary is slightly different from the wording quoted above that appears at the beginning of the document. They both begin the same, but the version in the comments sections ends with ”accessibility of the information” as a factor that may be considered, instead of the first stated ”amount in controversy” factor. I think this is just a mistake that will be cleaned up in the final draft.

The comments do, however, make clear that the issue of the costs and burden to try to preserve certain types of data, including, as the comments mention, “voicemail and instant messaging” should be considered. In my view, this means that in many circumstances, not-reasonably-accessible ESI does not need to be preserved. The Sedona comments to Guideline 7 do not, however, go quite that far.  They instead make the point, which is not necessarily contrary because it is dependent on the facts, that just because a type of ESI is not-reasonably-accessible, does not mean that it is outside of the scope of a duty to preserve.

We all agree that it depends on the circumstances.  In some circumstances, the inaccessibility of ESI will take it outside of the scope of preservation, but in some circumstances it will not.  In my view, the general bias should be to exclude not-reasonably-accessible ESI from preservation.  As I have mentioned several times previously in this blog, I think Judge Scheindlin got it right in Zubulake IV when she held:

The scope of a party’s preservation obligation can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes, for example, typically maintained solely for the purpose of disaster recovery, which may continue to be recycled on the schedule set forth in the company’s policy. (emphasis added)

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). Backup tapes are, of course, a prime example of not-reasonably-accessible ESI.

Guideline 8 is the most detailed guideline:

A legal hold is most effective when it:
(a) Identifies the persons who are likely to have relevant information and communicates a preservation notice to those persons;
(b) Communicates the preservation notice in a manner that ensures the recipients will receive actual, comprehensible and effective notice of the requirement to preserve information;
(c) Is in written form;
(d) Clearly defines what information is to be preserved and how the preservation is to be undertaken;
(e) Is periodically reviewed and, when necessary, reissued in either its original or an amended form.

Guideline 8 comes with a sample Certification of Completion document (Appendix B) designed to serve as a checklist for the recipient to confirm that he or she has complied with a hold notice. It requires the recipient to certify to the general counsel’s office that they have searched a long list of locations where responsive ESI might be located, including the LAN server for their office, laptop and office computer, email, home computers, Blackberries, email trash bin and desktop recycle bin, “removable storage media, such as disks, CDs, DVDs, memory sticks, and thumb drives,” and “files of any administrative personnel working for me.” 

Many companies will dislike how extensive and complete this list is, especially the inclusion of home computers, removable storage media and secretarial ESI. The commentary softens the blow somewhat by clarifying that this is not a form; it is only a sample, and may not be appropriate for every case. Still, this long list could put a huge search burden on many employees that is not appropriate for many cases, and so this aspect of the commentary is likely to be controversial.

Another controversial aspect of Guideline 8 is its placement of the burden for search and preservation upon the individual employees themselves, instead of on the company, its IT department or automated procedures. This let-the-employees-do-everything procedure has been the norm in the past, but is beginning to be challenged by many courts, especially where there is inadequate follow-up. See Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 2007 WL 684001 (D.Colo. March 2, 2007) and my prior blog on the subject Litigation Hold Is Not Enough: Sanctions Imposed Under Rule 26(g) for Negligent Collection and Preservation.

Email Guidelines

The second commentary on email is a short gem edited by Thomas Y. Allman, The Sedona Conference Commentary on Email Management: Guidelines for the Selection of Retention Policy (August 2007). The Commentary begins with a flurry of statistics showing the prevalence of email today, citing to one study estimating that 183 Billion email messages a day were sent in 2006.  This is quite a bit larger than the previous estimates I have seen of 60 Billion a day. Whatever, it is huge, and getting bigger every day, and everyone knows the strongest ESI evidence is usually an intemperate email.  See my prior blog Top Corporate Officers Continue To Write Embarrassing Emails. That is why most litigation today correctly focuses on email, and why this Email Commentary is so important.

The Sedona working group on email was able to agree on four general guidelines:

Guideline1: Email retention policies should reflect the input of functional and business units through a team approach and should include the entire organization including any operations outside the United States.

As the name of this blog indicates, e-Discovery Team, I obviously think they have it right to emphasize the need for the team approach in forming policies of any kind, not just email. The commentary explains that this should be an interdisciplinary team including Legal, IT and Management, including “Records Management, Compliance, Finance and representatives of major business units.” The commentary also mentions that the internal corporate team may want to utilize outside counsel, consultants and vendors. They also recommend that:

A fully engaged responsible person should be appointed to lead the team to work closely on implementation, including recommendations on budget or funding decisions as well as monitoring the program after implementation.

The next Guideline 2 points to the obvious need to understand the actual practices of the organization, as opposed to its written rules on emails, since in most organizations there is a gap between the two that the team needs to address.

Guideline 2: The team should develop a current understanding of email retention polices and practices actually in use within the entity.

The commentary includes a list of useful questions for the team to ask to explore the organization’s actual practices.

The third Guideline states:

Guideline 3: An entity should select features for updates or revisions of email retention policy with the understanding that a variety of possible approaches reflecting size, complexity and policy priorities are possible.

The commentaries on Guideline 3 point out that it is usually difficult to reach consensus between the different needs of the groups represented in the team, and suggests open discussion of the differences as the best approach.  See Osterman, “E-Mail Archiving Dependent upon Corporate Culture,” Network World (March 22, 2005) (describing the resolution of competing views of legal counsel who preferred to purge and a compliance officer who preferred to save email).

To help the team reach a consensus, the Guidelines include an Appendix with two opposite email policy statements.  Policy 1 is based on a “short default retention strategy” where emails are only retained for a short period (e.g., 30-90 days) and thereafter are automatically deleted. The user can only avoid this deletion “by taking explicit, affirmative actions” such as moving the email to a dedicated storage area. The other opposite Policy 2 is based on an “indefinite default retention strategy.” In this policy, email is retained on active servers for a time, and then “moved automatically to tiered storage and retained indefinitely” or some other specified period such as three to five years.

The fourth Guideline states:

Guideline 4: Any technical solutions should meet the functional requirements identified as part of policy development and should be carefully integrated into existing systems.

Most e-discovery teams studying these issues find that some kind of software and hardware purchases are needed to implement their recommended email practices. This guideline addresses this reality, and counsels the importance of carefully integrating the new purchases into existing systems.  The commentary notes that there are many different software and hardware solutions offered by competing vendors to solve these problems, and no one approach is superior. The commentary then provides a list of practical issues to consider when evaluating competing vendor proposals.

My congratulations and thanks to the hard work of ”The Sedona Conference Working Group on Electronic Document Retention and Production, eMail Management and Archiving Special Project Team.”  They have a long name, but their short, concise guidelines and commentary are a very practical and useful work. Every e-discovery team in America struggles with email issues and all will benefit from these pioneering guidelines.

Sedona’s New Commentary on Search, and the Myth of the Pharaoh’s Curse

The Sedona Conference has just released its Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (August 2007) for public comments.  A copy may be downloaded for personal use.  This Best Practices Commentary, like all of the Sedona publications, was written by a committee of expert members of The Sedona Conference, who agreed upon the content and wording.  This particular group is called the “Search and Retrieval Sciences Project Team.”  Writings by committee are usually an invitation for disaster, but Sedona consistently manages to pull it off, and do a first rate job, primarily, I think, because of the quality of their editors. The Editor-in-Chief for the Search Team is Jason Baron, about whom I have written several times previously, along with Executive Editors Richard Braman and Kenneth Withers, and Senior Editors Thomas Allman, James Daley and George Paul.

The Search Commentary begins by concisely stating the problems faced today to search high volumes of ESI.  It then offers three general solutions, followed by eight specific “Practice Points.” The comments contain both intellectual depth and good practical advice to all those struggling with the problems of search.

The Search Commentary is carefully considered and well written. Although I have a couple of suggestions on the comments, I fully agree with the committee’s observations and solutions.  Many will not.  In fact, I suspect that this publication will be quite challenging to many in the legal profession because it contradicts several well-established myths.  For instance, the Search Team acknowledges that most people consider:

manual review by humans of large amounts of information is as accurate and complete as possible – perhaps even perfect – and constitutes the gold standard by which all searches should be measured.

But the committee states that this is a myth!  Manual review may be perfect for a few hundred pages of documents, but fails miserably for a few hundred thousand, much less million, or billion. So much for the gold standard.

The Search Team also make the point, which is not controversial, that the large amounts of ESI in many lawsuits today has made the “venerated process of ‘eyes only’ review” both impractical and cost-prohibitive.  They contend that a new consensus is forming in the legal community:

that human review of documents in discovery is expensive, time consuming, and error-prone. There is growing consensus that the application of linguistic and mathematic-based content analysis, embodied in new forms of search and retrieval technologies, tools, techniques and process in support of the review function can effectively reduce litigation cost, time, and error rates.

This leads to the Practice Point 1 (of 8):

In many settings involving electronically stored information, reliance solely on manual search process for the purpose of finding responsive documents may be infeasible or unwarranted. In such cases, the use of automated search methods should be viewed as reasonable, valuable, and even necessary.

The automated search method of choice today is the almost-as-venerated process of keyword search review. It involves the use of select keywords that you think the documents you are looking for will contain.  Keyword searches also frequently include “boolean” logic, and can be expanded further with fuzzy logic, and stemming.  You then manually search the documents located by keyword search to determine relevance.  The manual review then frequently leads to adjustments in the query terms and repeat of the keyword search.  Most lawyers think that with this kind of iterative process, and skilled researchers, you can find most of the documents you are looking for. 

In fact, in a study done in 1985, lawyers and paralegals having special skills in this area searched a discovery database of 40,000 documents and 350,000 pages in a case involving a subway accident. David Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document Retrieval System, 28 Com. A.C.M. 289 (1985). At the end of the lengthy process, the legal team was confident that they had located about 75% of the relevant documents. In my experience, most attorneys think they have a similar, if not better, success rate.

Lawyers have been using keyword searches since the ’70s with Lexis and Westlaw to find case law.  I was first trained in this in 1978. At that time, Westlaw and Lexis each had mandatory video (VHS) training programs leading to certification. Once certified, you could use “dumb terminals” to access mainframes over modems.  It was a tremendous innovation in its day. 

It was a natural extension in the ’80s and ’90s to use the same keyword search technology to locate relevant documents in large sets of ESI. Lawyers and judges quickly endorsed this legal research method to also search for documents. As one judge put it, “the glory of electronic information is not merely that it saves space but that it permits the computer to search for words or ’strings’ of text in seconds.’ In re Lorazepam & Clorazepate, 300 F.Supp.2d 43, 46 (D.D.C. 2004). Keyword searching appeared to solve the problem of large volumes of electronic documents where the gold standard of “eyes only” review was not practical.  It might not be perfect like manual searches, but it got at least 75% of the documents, and so was an acceptable alternative.

The profession today is very familiar and comfortable with keyword searching.  Keyword search is the method employed by almost all lawyers when they use an automated search process.  In fact, I suspect that most lawyers are not even aware that there are alternatives to keyword searches.

That is why the committee’s next contention may prove very controversial: the supposed accuracy of keyword searches is just another myth! The Blair and Maron study in 1985 showed that, while the lawyers thought they had found at least 75% of the relevant documents, in fact they had only located 20%.

Can justice really be served with only 20% of the picture? Has the exploding cornucopia of ESI cursed the legal system with the pretence of real knowledge?

The Blair and Moran study, which is still the only one of its kind, led one commentator, Daniel Dabney, a lawyer and information scientist who now works for Westlaw, to equate the false confidence of computer searchers to the Curse of Thamus.  Daniel P. Dabney, The Curse of Thamus: An Analysis of Full-Text Legal Document Retrieval, 78 LawLibr. J. 5 (1986). Thamus was an Egyptian Pharaoh reported by Plato in his Phaedrus Dialogue to have criticized the invention of writing as a false substitute for real learning.  Thamus condemned writing, said to be a gift from the god Theuth (aka Hermes), as a curse in disguise. The Pharaoh predicted that writing would only lead to a delusionary “semblance of truth” and “conceit of wisdom.”  As Dabney put it in his article:

Since the mere possession of writings does not give knowledge, how are we to extract from this almost incomprehensibly large collection of written records the knowledge that we need?

Dabney argued that the Blair and Maron study proved that full-text computer assisted retrieval was not a valid cure to the Pharaoh’s curse.  The Sedona Search Team agrees:

. . . the experience of many litigators is that simple keyword searching alone is inadequate in at least some discovery contexts.  This is because simple keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English (as well as all other languages). . . .

The problem of the relative percentage of “false positive” hits or noise in the data is potentially huge, amounting in some cases to huge numbers of files which must be searched to find responsive documents. On the other hand, keyword searches have the potential to miss documents that contain a word that has the same meaning as the term used in the query, but is not specified. . . .

Finally, using keywords alone results in a return set of potentially responsive documents that are not weighted and ranked based upon their potential importance or relevance. In other words, each document is considered to have an equal probability of being responsive upon further manual review.

The Sedona Search Team notes that currently most e-discovery vendors and software providers continue to rely on outdated keyword searching. This is also what I am seeing. So, obviously this message may come as an unwelcome challenge to many e-discovery providers, and is therefore likely to be controversial.

But the Sedona Search Commentary does not end on a negative note; instead it points to new search technologies that will significantly improve upon the dismal recall and precision ratios of keyword searches. Here is how they summarize the herald of coming good:

Alternative search tools are available to supplement simple keyword searching and Boolean search techniques. These include using fuzzy logic to capture variations on words; using conceptual searching, which makes use of taxonomies and ontologies assembled by linguists; and using other machine learning and text mining tools that employ mathematical probabilities.

This part of the new Commentary is really interesting, albeit challenging, as the Team talks about alternative search tools and methods, and describes many of them in detail in the Appendix. 

The many incredible advances in technology over the last twenty years have created the legal morass we are in now.  In our present cursed state, it is impossible to find all relevant evidence, and a mere 20% capture rate seems pretty good.  The only viable solution is to fight fire with fire, and find a high-tech answer.  This requires a new kind of team synergy that I often talk about in this blog, a combination of Science, Technology and the Law. The Sedona search group concludes with a similar recommendation:

The legal community should support collaborative research with the scientific and academic sectors aimed at establishing the efficacy of a range of automated search and information retrieval methods.

The problems created by the information explosion impact all of society, not just the law. There is strong demand for new, improved search technologies, and this is becoming big business. Billions of dollars are now pouring into search technology research. For instance, in 2006 Google spent $1.23 billion, Yahoo spent $833 million, and e-Bay spent $495 million in core research and development activities. With this kind of commercial activity, there is good reason to hope that the Pharaoh’s curse may soon be lifted.

For more information on this subject check out the West Legalworks CLE webinar I did with Jason R. Baron – Director of Litigation, U.S. National Archives and Records Administration, College Park, Maryland; Doug Oard, Ph.D. – Associate Dean for Research, College of Information Studies, University of Maryland; and my law partner at Akerman in Los Angeles, Michael S. Simon. The 1.5 hour audio CLE is entitled The e-Discovery Search Quagmire: New Approaches to the Problem of Finding Relevant Needles in the Electronic Haystack.