All posts tagged Early Data Assessment

The ABC’s of EDA vs. ECA in Ediscovery – It’s as easy as 1,2,3, right?

The ABC’s of EDA vs. ECA in Ediscovery – It’s as easy as 1,2,3, right?

Now, now, now, I’m gonna teach you

Teach you, teach you

All about love, dear, all about love

Sit yourself down, take a seat

All you gotta do is repeat after me

 ———————-

Abc, easy as 123

Or simple as do, re, mi

Abc, 123, baby, you and me

 ———————-

Michael Jackson, my childhood heartthrob (and okay, maybe my adult heartthrob, too), tried to teach us the ABC’s of love back in the 1970’s.  According to MJ, love was as easy as ABC….right.

Just as love is more complicated than ABC, so is ediscovery – especially when it comes to early assessment of your data….or is it early assessment of your case?  EDA v. ECA — Why does it seem that these two terms are used interchangeably in ediscovery circles?  Is there really an important difference?

Understanding the Differences

The difference between EDA (early data assessment) and ECA (early case assessment) is subtle, but critically important.  Whereas ECA involves the entire legal matter—before discovery and beyond data analysis—EDA is a smaller subset, isolated to discovery activities. For example, ECA encompasses fact finding, venue research, liability analysis, damage assessment, adversary investigation, and litigation budget forecasting.  EDA, on the other hand, aids in fact-finding and narrows the scope of important data early on. During the process of EDA, data is separated between critical and non-critical groupings, the number of key players is narrowed, key search terms are tested, and critical case arguments are identified.  A robust EDA strategy (especially if data volumes are immense) usually involves ediscovery technology – a platform with searching, foldering, clustering, topic grouping, email threading, and maybe even predictive coding (or TAR) capabilities.  However, EDA is more than a technology—it is a methodology that involves people, processes, and the right technology. By using EDA, organizations tasked with the production of documents are able to drastically narrow immense fields of potentially relevant information into smaller, refined clusters of pertinent data. That data can then be feasibly analyzed with test search terms and other input parameters.

So, even though one small letter distinguishes EDA from ECA, the differences are significant to ediscovery practitioners.  Early assessment of data volumes in a matter is as critical to the case strategy as ABC and definitely more complicated than 123.

Early Data Assessment: Setting the Standard in Ediscovery Readiness

Early Data Assessment: Setting the Standard in Ediscovery Readiness

Think tanks, judicial members, and practicing attorneys have all acknowledged the integral role Early Data Assessment (EDA) plays in preparation for document production. By using EDA, organizations tasked with the production of documents (not limited to production within discovery) are able to drastically narrow immense fields of potentially relevant information into smaller, refined clusters of pertinent data. That data can then be feasibly analyzed with test search terms and other input parameters.

The difference between EDA and ECA (early case assessment) is important. Whereas ECA involves the entire case—before discovery and beyond data analysis—EDA is a smaller, albeit important, subset. For example, ECA encompasses fact finding, venue research, liability analysis, damage assessment, adversary investigation, and litigation budget forecasting. EDA, on the other hand, aids in fact-finding and narrows the scope of important data early on. During the process of EDA, data is separated between critical and non-critical groupings, the number of key players is narrowed, key search terms are tested, and critical case arguments are identified.

Contrary to ECA, EDA is utilized in settings other than litigation. First, in regulatory matters, EDA is used to identify data quickly for responding to inquiries. Second, in policy audits, it enables parties to confirm their compliance with internal policies. Third, EDA is used to assist with internal investigations to answer questions regarding who, what, when, why, and how.

Faced with issues of all shapes, sizes and interests, many attorneys wonder which matters are best suited for EDA. While the answer depends on the circumstances, it is helpful to consider the following criteria:

  • The data volume and type Timeline
  • Maturation of case strategy
  • Value or liability of the case
  • Projected costs of processing and review
  • Type of key players or fact witnesses identified

Additionally, EDA technologies can be most helpful when you are:

  • Unsure of your case strategy
  • Unfamiliar with your document set content
  • Lacking internal technical resources to evaluate the data before processing
  • Anticipating that traditional document review and native file export may not be sufficient
  • Able to devote ample time to thediscovery process prior to production

These benefits materialize from the earliest stages of litigation to the latter stages of trial after the EDA process is over. The information and analysis available through EDA allows a party to reduce its expenses and increase defensibility by focusing on data most likely to be responsive in the further stages of processing and review.

Not only can EDA facilitate the entire production process, it also provides an invaluable early window into document review, which allows counsel to furnish “substantial human input on the front end [of automated search technology]” as suggested by the Sedona Conference. EDA is more than a technology—it is a methodology that involves people, processes, and the right technology. To experience the widespread benefits described herein, all types of entities that seek to proactively manage document review should consider the implementation of a comprehensive EDA solution.

Kroll Ontrack, Fourth Annual ESI Trends Report (2010).

Case Law: CBT Flint Partners, LLC v. Return Path, Inc.

Case Law

Federal Circuit Court of Appeals Vacates Taxation of Costs Decision

CBT Flint Partners, LLC v. Return Path, Inc., 2011 WL 3487023 (C.A.Fed. (Ga.)). Previously in this patent infringement litigation, the Northern District of Georgia court granted summary judgment of invalidity regarding the patent dispute. In addition, the district court determined $268,311.22 in costs related to ediscovery were properly taxable. See CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009). On appeal, the Court of Appeals overturned the root issue in the underlying patent litigation, vacated the ruling regarding costs as the defendant was no longer the prevailing party and remanded to the district court for further proceedings.

Commentary

Although the 2009 opinion regarding taxation of costs was vacated, it is important to remember that the court’s ruling was a result of the Court of Appeals determining the District Court erred in its analysis of the underlying patent dispute – not the Court of Appeals determining that costs were not properly taxable. Indeed, the entire discussion regarding the cost order was brief:

In light of our disposition, Cisco was not a prevailing party and we therefore vacate the district court’s rulings on costs and we deny the cross-appeal. We remand to the district court for further proceedings consistent with this opinion.

Despite this ruling and others on the topic, parties still face the difficult issue of containing costs while navigating ediscovery effectively. How can this seemingly impossible task be achieved? The best advice is for parties to cooperate early on in pretrial conferences. Further, parties must navigate thediscovery process with an eye toward efficiency. Courts that are addressing the issue of costs are largely expressing frustration not only with the lack of cooperation, but the failure to limit discovery so as to keep costs reasonable. The discoverability standard remains extremely broad, and the costs of discovery will vary widely depending upon the facts of the case, but litigants should always do their best to ensure that discovery is at least reasonably scoped to avoid unnecessary expense. Parties should also make use of solutions such as Early Data Assessment and Intelligent Review Technology to conduct a proper, thorough and fast analysis and review of the data potentially at issue.

Case Law: Race Tires Am., Inc. v. Hoosier Racing Tire Corp

Case Law

Court Affirms Taxation of E-Discovery Costs to Prevailing Party Under 28 USC §1920

Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620 (W.D. Pa. May 6, 2011). In this antitrust litigation, the plaintiffs moved to appoint a special master and to review the taxation of electronic discovery costs awarded to the defendants. Refusing to appoint a special master to review the reasonableness of the ediscovery costs this late in litigation, the court remarked that its “understanding that ediscovery has become a necessary and sometimes costly function of civil litigation” was the only special expertise necessary. Turning to the clerk of court’s taxation of electronic discovery costs – totaling $143,007.05 and $246,101.41 for the respective defendants – the court considered the plaintiffs’ objection that the costs were not taxable pursuant to Title 28 U.S.C. § 1920. As a matter of first impression for the court, it reviewed the varying case law among the jurisdictions but noted that since the section’s language was amended in 2008, “no court has categorically excluded ediscovery costs” under § 1920. Finding that the costs paid to third party vendors were necessary for highly technical services and not merely for the convenience of the parties, the court held they were properly taxable to the plaintiffs.

Commentary

This case has received notable attention throughout the industry as is to be expected from a decision that rules the taxation of costs pursuant to Title 28 U.S.C. § 1920 is permissible for costs incurred using an ediscovery vendor. As the court noted in its decision, there have been several cases on both sides of the “cost fence,” but it could find no court decision that excluded ediscovery costs as being an appropriate consideration under § 1920 following Congress’ amendment to the language in 2008. The court discusses this point in footnote 6 of this decision, citing the following language: “[a] judge or clerk of any court of the United States may tax as costs the following: … fees for exemplifications and copies of papers” to “fees for exemplification and the costs of making copies of any materials.” (emphasis added in the court decision). Based on this language, the court concluded that it is proper to consider the costs incurred for ediscovery under this statute.

In affirming the award of costs, the court also noted specifically that the costs requested by the defendants were not associated with any legal fees charged by attorneys or paralegals for document review. Instead, the costs were for the imaging of nineteen hard drives and data processing of five custodians for one defendant and for the imaging of four servers which contained over 490 gigabytes of data and 270,000 files for the other defendant.

Among the cases the court cited that awarded the taxation of ediscovery costs was a decision from the Northern District of Georgia, CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009). In that case, the defendants enlisted an ediscovery vendor to aid compliance with the production of 1.4 million electronic documents and six versions of source code. Due to the excessive cost and time connected with the collection of the documents, the defendants filed a motion to tax the costs associated with the use of the vendor. Overruling the plaintiff’s objections and ordering recovery of taxable costs, the court sent a strong message to ediscovery litigants. According to the court, the highly technical nature of ediscovery in the electronic age, more often than not, requires the use of outside vendors. Therefore the “[t]axation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery.”

Throughout the opinion the court also noted the fact that the parties had entered into an extensive ediscovery Case Management Order agreed to by the attorneys. The ediscovery that occurred was in accordance with this agreement and many of the costs incurred by the defendants were due to sizeable requests by the plaintiffs. While perhaps not the driving decision for the court, the fact that there was an agreement in place the defendants abided by undoubtedly helped make their case for taxation of ediscovery costs. We have blogged numerous times about the importance of cooperation and entering into smart agreements regarding ediscovery. In order to make the most of the meet and confer process, counsel must be prepared and understand the client’s data universe that may be at issue. In addition, counsel should engage in early data assessment processes and technology to conduct such acts as testing keywords to determine if they are appropriate and will result in a targeted set of responsive data (in this case, one of the plaintiffs imposed over 442 search terms). Conducting ediscovery in a targeted, well-thought out manner will help control costs and reduce the amount of data that must then be reviewed.

Case Law: Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc.

Case Law

Court Grants Motion to Compel Citing Failure to Identify Information Not Reasonably Accessible

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2011 WL 1125493 (W.D.N.Y. Mar. 21, 2011). In this business litigation, the plaintiff sought disclosure of internal e-mails relating to its breach of contract claim. Opposing the motion, the defendant argued the request was untimely and that the information sought was not relevant, responsive or readily accessible. Noting the duty to supplement production continues even after the discovery period closes, the court found the requested e-mails were relevant and responsive to the plaintiff’s initial document request. Despite the defendant argument that producing the e-mails would require searching Exchange databases housed on an external 4 terabyte storage array at a cost of $13,000, the court asserted that the defendant had a duty to identify sources of information that were not reasonably accessible in its discovery response and rejected its belated arguments regarding burden. Accordingly, the court determined the defendant’s initial production was incomplete and granted the motion to compel.

Commentary

This case demonstrates the importance of being prepared for the Rule 26(f) meet and confer conference in order to address important ediscovery issues fully and accurately. It is important to engage in these early discussions as well-informed, prepared counsel may find itself in an elevated bargaining position capable of dictating advantageous terms. In the conference, counsel should make efforts to understand the opposing party’s technical landscape, clarify the scope of document requests, resolve any production format disagreements and pre-empt the negative impact of inadvertent production of privileged documents by entering into a clawback agreement. Other ediscovery topics that counsel should discuss include the preservation of evidence, testifying experts, cost allocation and other anticipated evidentiary disputes.

In order to be prepared for this conference, counsel should also understand their client’s electronic information and can achieve this through collaborating with IT personnel and in-house counsel (or the organization’s ediscovery team). A data map, which is essentially an outline of a company’s information systems and processes, is also an incredibly helpful resource in identifying data sources and making determinations regarding accessibility of data – something that was amiss in the current case. Use the data map to strengthen pre-discoverability inaccessibility arguments by providing credible evidence of undue burden and cost. Other technology, such as early data assessment (EDA), can also be helpful in meet and confer preparations. EDA will help you determine appropriate search terms allowing parties to collaborate on this important discussion point. The reporting functions within this technology can also help document the process used to determine search terms and validate the quality of those terms for both hits and non-hits.

Finally, it is important for counsel to discuss the use of advanced technology at this conference and reach a documented agreement regarding whether it is acceptable to use such things as intelligent review technology. Although not discussed in case law yet, reaching an agreement regarding the use of this technology at the Rule 26(f) conference will greatly bolster defensibility. Be prepared to explain to opposing counsel what the technology is and how you plan to use it – a process that may be aided by enlisting the help of an expert .

Case Law: Seven Seas Cruises S. DE R.L. v. V. Ships Leisure SAM

Case Law

Court Orders Retention of Consultant to Repair Repeated and Continued Discovery Failures

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure SAM, No. 1:09-cv-23411-UU (S.D. Fla. Feb. 19, 2011). In this breach of contract dispute, the plaintiffs requested sanctions and production, alleging the defendants intentionally and continuously failed to produce all responsive ESI. The defendants conceded not all relevant ESI was produced, noting that “in hindsight, an Ediscovery consultant/vendor should have been retained.” However, the defendants argued that they had agreed to re-run recent searches, that they would run searches on additional custodians identified by the plaintiffs and that the plaintiffs had access to much of the information via copies of correspondence between the parties. Noting that much of the dispute could have been significantly narrowed if not totally avoided through a pre-trial conference, the court agreed the defendants’ searches were wholly inadequate and found their failure inexcusable. Accordingly, due to their repeated failure to conduct full and complete ESI searches, and the failure to retain a consultant to conduct such searches, the court ordered the defendants to utilize a third party vendor and pay the associated attorney fees and costs. The court declined to recommend default judgment, finding a lack of bad faith and no non-speculative evidence of prejudice.

Commentary

This case demonstrates the importance of preparedness and proper response. According to the Fourth Annual ESI Trends Report published by Kroll Ontrack, 52 percent of companies have an ESI discovery strategy in place, which is a pre-defined, systematic process for managing ESI in preparation for or in response to litigation, investigations or regulatory matters. Creating this strategy is a great first step, but certainly isn’t enough. Companies must implement, monitor, follow and test the strategy to ensure it is defensible and repeatable (interestingly, only 38 percent of companies have tested their ESI discovery strategy). After crisis strikes is the wrong time to get your house in order and proactive preparations will help immensely to control costs and ensure the adequacy of your response.

In addition, it is important to utilize technology that will help facilitate an efficient and timely review. Early data assessment provides an in-depth view of the quality of a case prior to the incurrence of massive document review costs, and can help reduce data sets for processing and review. The use of EDA technology will also strengthen search protocol defensibility – a major issue for the defendants in the above case – as parties can collaborate more intelligently on search terms early on. In addition, the use of e-mail analytics can validate that all relevant custodians have been identified, and reporting features will help document the process and validate the quality of search terms. A better understanding of searching processes and techniques, in addition to engaging in a productive meet and confer conference, can definitely help parties save costs and avoid the situation the defendants found themselves in.

Finally, it is important to vet your service provider, especially if retaining one is court-mandated based on poor ediscovery practices. Not all providers are created equal and rushing the decision or making a rash decision based solely on one factor may end up hurting you in the long run if the work is not performed properly. General considerations when choosing a service provider include reputation and experience, security, confidentiality and chain of custody protocols, flexibility and adaptability, and the technology and support available. In addition, discuss such things as processing and storage capacities. Enlisting the wrong service provider for your matter may end up costing you more when all is said and done. Choose wisely, ask tough questions and look for honest responses.

Early Data Assessment – Too Valuable To Ignore

Electronic discovery continues to be viewed as one of the most expensive parts of litigation.

Upon recognition that electronically stored information (ESI) grows more exorbitant as the information and technology bubble expands, attorneys must be attuned to essential ediscovery savings available through the utilization of advanced technologies, including early data assessment (EDA). Using EDA to reduce data before proceeding with data review and processing can corral discovery costs, allow for greater efficiency and increase defensibility in the courtroom. Through EDA, counsel can conduct a true “assessment” of the data before making strategic decisions and incurring costs that may prove to be unnecessary.

EDA as an Advantage

The first vital step in reducing litigation costs can be accomplished by narrowing the scope of potentially relevant data. Because attorneys who are involved in complex litigation struggle to review epic volumes of ESI, reducing the number of custodians prior to document review substantially minimizes review efforts later. In doing so, attorneys need to “weed out” irrelevant custodians and maintain only the pertinent custodian files. An overall reduction in the number of custodians decreases the amount of electronic files, which diminishes time associated with data processing and allows for greater expense forecasting.

When using EDA, also take advantage of email analytics – a technology-enabled process where emails in the document set are organized and analyzed. This process recognizes and visually represents relationships between people, events, timelines and communication patterns through advanced visualizations. By representing data in this fashion, people involved in the ediscovery process can analyze emails quickly, form legal case strategy, investigate any potential internal incidents and intelligently collect data in preparation for discovery.

Important Advanced Searching Techniques

A proper EDA tool will also include advanced features such as concept searching, topic grouping, email threading and near-duplication that will allow for a quicker, more efficient and accurate review of the data sets. Using these tools prior to exporting the data for review will further aid in narrowing data sets to save money during the document review process.

Concept searching allows a user to enter a keyword or phrase and obtain conceptually related items. Using this search technique can identify associated terms and concepts, even if they do not match exact search terms. This technological capability delivers faster and more accurate results than conventional searches. For example, in the case of litigation related to the crash of a Boeing 727 aircraft, a query for that phrase would also retrieve documents concerning “Boeing,” “77,” “B77,” “airliner,” “plane” and other pertinent topics without having to search for each permutation individually. The search may also turn up technical terms associated with the structure of the aircraft or other crashes, even if the user is not familiar with those terms and would therefore not be able to search on them.

Another advanced searching technique is topic grouping, which groups similar documents together while labeling them for quick identification. With this technique, users do not need to “seed” the processing engine by providing keywords. Likewise, email threading also allows for greater efficiency in the identification process, by allowing users to identify, group and review email conversations based on content. Using the actual content of the emails to identify threads is a reliable method, as it will not fail to recognize a thread if the subject line changes or if emails are exchanged across different email applications.

Finally, users can also use near-duplication technology to identify and compare documents that are very similar to one another, but are not exact duplicates. This technology assesses the document set’s similarities, identifying the most uniquely representative documents as “the core.” All related documents are then grouped around the core, allowing the user to engage in a side-by-side comparison of the data to quickly determine whether the near-duplicate documents in the set can be discarded as irrelevant, or whether the differences should be reviewed.

Preparing for the Rule 26(f) Conference

Using EDA also aids in preparation for the Rule 26(f) conference. Using visualization, search and reporting features to identify relevant custodians and formulate keyword and date criteria for filtering can inform and support counsel’s arguments on whether and how to reduce or augment the scope of the discovery. Search features allow counsel to test out proposed filtering criteria before they commit to using it in their case. They allow counsel to determine whether a given search term is over- or under-inclusive, or will result in a multitude of false hits. In addition, EDA reporting features can be used to quantify the number of documents or GBs that are responsive to certain keyword or date criteria and thereby estimate the corresponding ediscovery costs that would likely be incurred to process, review and produce those documents. Visualization features can also be used to identify and prioritize custodians for discovery, bolstering arguments for or against the necessity of preservation of data held by certain custodians.

Conclusion

Litigation is a strategic endeavor, but EDA cultivates information shortcuts that prove fertile to subsequent discovery processes. Although discovery consumes most of the costs associated with litigation, those costs can be mitigated by effective case strategy and data-narrowing efforts. EDA not only increases defensibility, but also reduces cost and promotes efficiency in the long run, and any reduction in the amount of electronic data that must be reviewed translates to immediate and sizeable cost reductions.

 
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