All posts tagged litigation

The DOJ and FTC; State and Federal Antitrust Laws; and Merger Enforcement in the Energy and Healthcare Sectors

New trends in antitrust law are impacting how agencies view company mergers. Previously, in part one of this video series, antitrust experts discussed how policy changes and technological advancements are impacting antitrust laws.

In part two of our antitrust video series, KrolLDiscovery shares the remaining videos from the 2017 Annual Spring Meeting of the ABA Section on Antitrust Law, made in collaboration with The Capitol Forum. Each video is organized with a short description to make it easier for you to decide which of these compelling videos to view first. Enjoy!

Are the Agencies Taking a More Aggressive Stance?

Watch: Aggressive Trends in Merger Review featuring George Paul, partner at White & Case LLP, as he discusses how this aggressive trend is reliant on several factors, such as structural presumptions and narrow market definitions.

Watch: Aggressive Trends Impact Efficacy of Mergers featuring Ian John, partner at Kirkland & Ellis LLP, as he discusses how this aggressive trend is impacting the timeframe of when transactions become finalized and how this trend will impact merger transactions in the future.

Watch: Unfavorable Antitrust Provisions Lead to More Litigation featuring Cliff Aronson, partner at Skadden Arps Slate Meagher & Flom, as he sees an increasing trend of companies negotiating unfavorable antitrust provisions, requiring them to go the full length of the investigation and possibly into litigation.

Merger Review in the Energy Sector

Watch: Mergers in the Energy Sector featuring Billy Vigdor, partner at Vinson & Elkins LLP, as he explains how market expansion in the energy sector may interplay with merger analysis and control under the Trump administration.

Mergers in the Healthcare Industry

Watch: Antitrust and Healthcare Consolidation featuring Joseph Miller, a partner at Crowell & Moring LLP, as he discusses current cases in the field of healthcare consolidation, the Affordable Care Act’s impact on healthcare consolidation and the future of healthcare consolidation.

Federal and State Engagement in Antitrust Law

Watch: Federal and State Relationships in Antitrust featuring Melissa Maxman, partner at Cohen & Gresser LLP, as she discusses the antitrust exemption in the Shipping Act and relationships between state and federal antitrust laws.

Watch: State Involvement in Antitrust Law featuring Kathleen Foote, senior assistant attorney general at the California Department of Justice, as she explains how states have become more involved in antitrust law and the impact states have on national mergers.

The Most Critical Decision: Who do we work with and how do we start?

Perhaps the most critical point of time in an ediscovery matter is when the attorneys and litigation teams learn ediscovery will play a significant role in the case. Whether the red flag comes from a client’s dust-coated legacy email system, or from a haystack of Electronically Stored Information (ESI), three basic paths lie ahead: team up with a software or service provider, start identification and collection using in-firm or in-house resources, or just sit and think for a second.

For most cases and teams, the first two options are often (and should be) foreclosed due to a lack of knowledge about ediscovery, technology, vendor pricing, or the case at hand. Instead, they opt for choice three, until they know enough to make a well-informed decision.

While this may seem perfectly ordinary, when you revisit this ediscovery purgatory every single case, it also becomes painstakingly inefficient.[1] One way around this “hurry-up and wait” game is to plan ahead – invest in technology and people that are “at the ready” should ediscovery ensure. To learn more, visit to see how you can address these massive inefficiencies and transform your ediscovery practices from an art to a science.

[1] Kroll Ontrack surveyed its Advisory Board members in 2013 and found that these companies were dealing with a crushing load of 46 new ediscovery projects each year. Because many chose a technology approach on a case-by-case basis for each project, the companies spent 460 hours a year simply determining who to work with and what approach to take.

A Quick Pulse on the State of Ediscovery

a quick pulse on the state of ediscovery

Recently, while digging through pages of informational content on the state of electronic discovery, two things became abundantly clear: first, litigation costs are on the rise as “Big Data” continues to get bigger, and second, practitioners must conduct more efficient and cost-effective discovery to navigate exploding data volumes. It is wonderful to have access to so much data that we can all start evaluating our market, but as I looked through the data, quite a bit of it didn’t have much in the way of source details. How much of this was really just “heard it through the grapevine” vs. fact-based analysis?

I don’t dispute the validity of these two general claims asserted in most informational content, but I thought it would be useful to dive into those claims a bit more and find some numbers to back them. With just a bit of digging, I came across some interesting stats on the state of ediscovery and predictions for the future:

  1. For litigation, the stakes are rising. In Fulbright & Jaworski’s Ninth Annual Litigation Tends Survey Report, 92% of the nearly 400 responding organizations anticipate the same amount or more litigation in the next year, up from 89% last year. Among those respondents, 54% of them reported spending more than $1 million on litigation expenses (which exclude the cost of settlements and judgments), which was up from 46% in 2010. Furthermore, the number of respondents facing one or more lawsuits with more than $20 million at issue increased across the board from last year. While some of these increases are marginal amounts, the overall amount and cost of litigation appears to be trending up.
  2. Ediscovery is growing at a fast pace. According to a report published by Transparency Market Research, the global ediscovery market is expected to grow to $9.9 billion by 2017—a compound annual growth rate of 15.4% from 2010, where the ediscovery market was worth $3.6 billion. The United States ediscovery market alone is expected to grow from $3 billion in 2010 to $7.2 billion in 2017, thereby accounting for nearly three-quarters of the global market. Although the U.S. will account for the majority of the market, the international market is expected to see a 23.2% CAGR between now and 2017.
  3. Review is the most expensive portion of ediscovery by a longshot. According to Where the Money Goes: Understanding Litigant Expenditures by the Rand Institute, review accounts for approximately 73% of all ediscovery production costs, and outside counsel amounts to approximately 70% of all ediscovery costs. As data proliferates, reducing the amount of time spent on review will likely be the key to controlling costs.

While none of these numbers are necessarily groundbreaking, they provide some backing to claims that costs are on the rise and that practitioners must increase ediscovery efficiencies. However, these numbers are merely a drop in the bucket, and I highly encourage readers to look into each of the studies I’ve mentioned to gain a better understanding of where ediscovery is going..

Deploying Trainers in Technology Assisted Review (TAR) without “Spoiling the Broth”

Deploying trainers in technology-assisted review (TAR)

Leaving little room for interpretation, the court in Coquina Investments v. Rothstein, stated that the defendants’ litany of ediscovery project management pitfalls (which involved over 200 attorneys across two firms) culminated into a “case of too many cooks spoiling the broth.” While Coquina Investments involved format of production issues, the same rationale applies when deploying trainers in technology-assisted review (TAR) —too many trainers can lead to inconsistency and poor machine learning.

Taking Control of the Technology-Assisted Review Kitchen

Using TAR in litigation is strikingly similar to working in a professional kitchen. There are many parts moving on parallel tracks. Just like a pastry chef may begin working on dessert while a grill chef prepares the main dish, you may have reviewers allocated to train a recently found hard drive while a sub-team performs corrective training on a production set. And above all else, in either scenario, nothing leaves the kitchen without a taste test (quality control). But perhaps the most difficult task involves assigning appropriate roles to a diverse cast of employees during the stages of machine training.

  • Lead Attorney: The Chef de Cuisine—in charge of all things related to the kitchen. This role involves making executive decisions like when to stop review, how to provide additional training and who will train the machine.
  • Subject Matter Experts (SMEs): The Sous-Chefs—second-in-command to the Chef de Cuisine. These are attorneys that have a firm knowledge of the nature of the case and the issues involved. They are capable of making high-level decisions and have an expansive knowledge of the dispute.
  • Contract AttorneysThe Chefs de partie—line cooks responsible for certain areas of production. These are attorneys who are comfortable and trained on the issue at hand, but do not have the level of knowledge possessed by Subject Matter Experts.

Choose Your Recipe

The Chef de Cuisine works closely with the Sous-Chefs to ensure that everyone clearly understands the basics of the recipe so that when the Chef de Cuisine (the Lead Attorney) is out of the “kitchen” the quality of the output remains constant.

When it comes to dedicating a team of SMEs to train the system, the adage “less is more” carries the day. As discussed in a document produced by the TREC 2008 Legal Track, determining whether a document is responsive or not responsive is a deceptively subjective process.  Lawyers “draw lines”—often at different places—across a number of determinations like “the nature of the risk posed by production, the party requesting the information” and the willingness of the production party to face a challenge for underproduction. Because the risk of inconsistencies in deciding responsiveness is exacerbated by the introduction of more trainers, rarely will you want more than five SMEs training the system. The restaurant owner mutters, “but my project is big, there is no way that I can rely on only five reviewers.”  Generally, two to five reviewers can handle the targeted review load for even a very large project. The total amount of training documents will vary depending on if you plan to “seed” the system (and how much “seeding” you plan to do), the number of documents in your data set and your desired confidence level. Ultimately, responsiveness decisions made on this fraction of documents will be extrapolated to all remaining documents in the data set; it becomes critical that the SMEs are in sync with the goals and structure of the case.

Reduce and Stir

While the ideal structure for deploying this handful of SMEs is still up for debate, there is common consensus that there must be some process in place to arbitrate consistency when responsiveness disputes arise. I’ve seen some interesting hierarchical training structures over the years designed to handle training disputes. These are some of the most common:

Training Structures of technology-assisted review

Finally: Tasting the Broth

An effective document review and an efficient kitchen both rely upon QC measures to ensure quality and consistency of output. A well-designed plan for validating the automated technology-assisted review output is key to knowing when to stop training for quality and when the documents are ready for consumption at the next stage of the case. Where the Chef de Cuisine is responsible for ensuring that only quality dishes leave her kitchen, the Lead Attorney is also responsible for the quality of the data in her case. Only when quality control measurements reflect defensible levels of recall and precision will a Lead Attorney be in a position to move beyond first-pass review and plate the production for the requesting party—Bon Appetit!

To gain hands-on TAR experience, register now for the newest educational course offered by Kroll Ontrack, TAR Learning Labs.  The next Learning Lab is coming up in Minneapolis, MN, in early June.  Sign up soon, space is limited!

Cost-Shifting in the Era of Big Data

Ediscovery - Cost-shifting in the era of big data ediscovery

As children, we’re taught the importance of fair play. As adults, we often learn that “fairness” is a rather amorphous concept. In litigation specifically, what’s “fair” tends to vary greatly by context, circumstance, and the arguments of the individual asserting that something is (or isn’t) fair.

In the context of ediscovery, however, the Eastern District of Pennsylvania sent an important message to litigants in Vaughn v. L.A. Fitness: “[D]iscovery need not be perfect, but discovery must be fair.” In Vaughn, the court asserted that “[D]iscovery burdens should not force either party to succumb to a settlement that is based on the cost of litigation rather than the merits of the case” and ordered the plaintiffs to pay for additional discovery in a pre-class certification dispute.

Ediscovery – Cost-shifting Trends for Big Data

Although Vaughn’s holding applied specifically to pre-class certification discovery, the opinion follows a growing trend of courts increasingly turning to cost-shifting to more equitably distribute the cost of Electronically Stored InformationBig data cost-shifting: Cisco, the dawn of the zettabyte era (ESI) production between parties. Further, the notions advanced by Vaughn will likely continue to find footing as data volumes proliferate. Since the advent of the microprocessor in 1971, the volume of data has exploded. In 2012, the amount of global data reached approximately 2.8 zettabytes (ZB), and by 2020, the digital universe is expected to reach 40ZB—enough information to fill over a half trillion 32GB tablet computers. Naturally, as data volumes increase, so do the amounts of ESI subject to litigation, as well as the costs associated with production.

Although the likelihood of cost shifting in big data ediscovery is on the rise with big data, legal expertise and advocacy are still necessary. Not all arguments for cost-shifting are a slam dunk, and the presumption that the producing party pays remains. Parties requesting cost-shifting must bolster their arguments with sufficient facts and figures to prove that the traditional presumption would prove burdensome or inequitable. Otherwise, you might find yourself dejectedly (and perhaps mistakenly) clinging to the belief that life simply isn’t fair.

View the new Kroll Ontrack cost-shifting infographic.

LTN Article: Five Reasons to Outsource Litigation Support

LTN Article: Five Reasons to Outsource Litigation Support

In this November 2012 Law Technology News article on litigation support, Jackson Lewis Partner Ralph Losey discusses the five reasons Jackson Lewis decided to outsource all its non-legal ediscovery work to chosen partner Kroll Ontrack:

 “After nine months of research and preparation, this June, we decided to outsource to a vendor all of our nonlegal electronic data discovery work that our litigation support department had been providing to our clients. Because Jackson Lewis is a national labor and employment law firm with 49 offices, we needed a vendor that served the entire country and had the capacity to handle high volumes of work. We were also looking for simple, one-stop shopping to handle all of our nonlegal e-discovery needs, including our forensic investigations, collections of electronically stored information, processing, hosting, and advanced software. The review software had to include predictive coding features, and be affordable for all size cases, not just the biggest.

Based on our experience, here are five reasons why your organization should consider outsourcing.”

Read full article.