Legal

Three Ways Technology Relieves the Pressure from Expanding Whistleblower Regulations

muna.abdulkader — Thu, 05 Sep 2024 13:00:00 +0000

Three Ways Technology Relieves the Pressure from Expanding Whistleblower Regulations muna.abdulkader Thu, 09/05/2024 - 09:00

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Maria Fernanda Gallo, Martin H Audet, Daniel Meyers

Legal

Introductory Guide to eDiscovery

muna.abdulkader — Thu, 14 Mar 2024 15:18:14 +0000

Introductory Guide to eDiscovery muna.abdulkader Thu, 03/14/2024 - 11:18

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101 Guide: eDiscovery

Organizations produce a deluge of electronic information. Email inboxes are overflowing, hard drives and cloud storage repositories are packed, and social media notifications come at breakneck speed.

For legal professionals who must locate key documents and information for use as possible evidence in litigation and investigations, the explosion of such data has rendered the process of collecting, culling, and reviewing digital information—known as eDiscovery—incredibly costly and time-consuming.

Fortunately, advances in eDiscovery technology are reducing the cost and burden for legal teams to narrow the universe of potentially relevant data. This eDiscovery 101 guide provides an introduction to the fundamentals of eDiscovery and explores challenges and best practices, including considerations for multilingual and cross-border eDiscovery.

What Is eDiscovery?

eDiscovery is the process of identifying, collecting, filtering, and reviewing electronically stored information (ESI) that constitutes potential evidence in legal proceedings and investigations. During eDiscovery, legal professionals, IT personnel, and forensics teams work together to narrow very large datasets into more manageable volumes.

Prior to the digital age, “discovery” in business disputes meant combing through boxes and drawers full of paper documents to locate key information and evidence. Today, since most documents needed for business litigation, arbitration, and investigations are stored in electronic format, traditional discovery is referred to as eDiscovery and is focused on ESI. In the early days of eDiscovery, it was possible for legal professionals to manually review ESI to determine its relevancy to a matter. This was feasible for 25 or 2,500 files, but not so much for 25,000, let alone 250,000 or 2.5 million!

Today, eDiscovery tools powered by analytics and artificial intelligence (AI) significantly streamline the eDiscovery process. But even with modern technology, given the ever-increasing volumes and diversity of ESI, eDiscovery remains an intensive endeavor that requires human expertise, effective communication, and agile decision-making at every step of the way.

What Is ESI?
ESI stands for electronically stored information. This includes a wide variety of digital assets, including emails; e-documents (Word, PPT, and Excel files); image, audio, and video files; mobile device data (e.g., chat programs and text messages); cloud-based applications; website content; and social media postings..

What Is the EDRM Framework for eDiscovery?

Introduced in 2005, the Electronic Discovery Reference Model (EDRM) is a visual representation of the complete eDiscovery lifecycle, which is widely referred to by legal teams globally. The EDRM breaks down the eDiscovery process into nine steps, although not every step is relevant to every matter. The EDRM isn’t always followed sequentially, and steps may be repeated depending on the project scope and cadence.

What Are the Steps in the EDRM?

01 Information Governance

Information governance (IG) is often cited as the first step in eDiscovery, but it may be more helpful to think of it as proactive planning that enables a company to prepare for and execute eDiscovery in a more streamlined manner. IG provides clarity on the scope of data and its sources by prompting key questions such as:

a. Where is my data located?
b.    Who might have possession, custody, and control of my data?
c.    Am I retaining more data than I need to for legal and operational purposes?
d.    What are the applicable laws and regulations surrounding the retention and transfer of my data?
e.    Do I have a clear understanding of what steps to take by which stakeholders in the event that the eDiscovery process is triggered?

With solid IG protocols in place, the eDiscovery process will be more efficient and streamlined.

02 Identification

This is the process of identifying the location, systems, sources, and people (“custodians”) who may hold data that will be relevant to the case at hand. You’re trying to understand the scope of data and how to access it for eDiscovery purposes.

03 Preservation

Once relevant ESI has been identified, it needs to be preserved for litigation. Common ways to accomplish this are to place a formal legal hold on the data so that it cannot be modified, deleted, or destroyed, or create a forensic copy of the ESI for external preservation and storage.

04 Collection

Data collection is a process of forensically creating copies of all data, including preserving metadata. This is typically conducted by forensic professionals using specialized software, although some modern IT systems enable “self-collection” by IT professionals. It is paramount that the contents of the data, including its underlying metadata, are not altered or lost during this process.

05 Processing

This is where ESI (including metadata) from various sources is converted into a common, usable format for attorney analysis and review. During the processing phase, data can be deduplicated and further filtered or culled using search terms, date ranges, file type restrictions, and, to varying degrees, data content.

06 Review

After data processing and filtering, the “surviving” data is evaluated by attorneys for relevance, privilege, confidentiality, and privacy. Organizations typically outsource this step to outside law firms, as in-house legal teams often lack the time or resources. In some cases, in-house counsel will conduct a “first pass” review of data before handing the process to outside parties. Third-party managed review companies also provide contract review attorneys to execute the review process at a fraction of the cost of law firm personnel. Typically, the review of ESI is performed on a specialized document review platform, such as Relativity.

07 Analysis

Attorneys evaluate the data for context and content, categorizing documents based on relevance, key issues, and importance.

08 Production

Data is packaged and disclosed to opposing counsel and/or government investigators. It is often converted into a static format, such as PDF, allowing for the redaction of privileged or non-relevant information.

09 Presentation

Data is digitally presented as evidence during a legal proceeding.

What Is Early Case Assessment?

Early case assessment (ECA)in a workflow is typically employed during the “processing” stage above to identify key documents and information that the legal team uses to advise its client on case strategy and merits. ECA can help predict the cost of a case as well as likely exposure, which helps teams create realistic case strategies and budgets for the full eDiscovery process. ECA also uses advanced methods to filter out non-relevant data early in the eDiscovery process, thereby narrowing large datasets. Beyond the standard culling methods of filtering by date and search terms, and deduplicating and de-NISTing files (i.e., removing system files and other non-user-generated files), ECA leverages the following tools to further cull data during processing:

Filetype filters (e.g., removing calendar entries or video files when not relevant to the matter)
Domain/email handle filters (e.g., removing SPAM and industry newsletters that hit on search terms but are not relevant to the underlying dispute)
Concept clustering (i.e., organizing the files by content to identify and remove groups of search term false positives)

Generally speaking, standard ESI filtering results in an 80% reduction in the volume of ESI. That number can top 90% using ECA advanced filtering, meaning only 10% of your ESI moves to the document review phase, rather than 20%.

Digital Reef is an ECA and eDiscovery platform from ��ɫ Legal that ingests, culls, analyzes, and exports datasets. It can be installed securely on-site or hosted in a ��ɫ Legal data center. Capable of processing up to 17 terabytes of data in 24 hours and managing multi-language data, Digital Reef can help you process, investigate, and preview your data 40% faster while reducing datasets by more than 90%. Attorneys and legal processing service providers use Digital Reef’s built-in document viewer and coding interface to conduct investigations.

For larger matters that require linear or a technology assisted review (TAR)-based approach, data is culled in Digital Reef and then exported in required output formats to easily load into your preferred review solution. Digital Reef integrates with numerous technologies, including the market-leading Relativity document hosting and review platform. The team at ��ɫ Legal builds proprietary add-ons for Relativity.

ECA in Action
In a construction matter, a case-relevant search term entered into an ECA tool produced 300,000 emails. However, many of these documents related to construction projects that were not relevant to the matter at hand. Emails tied to these extraneous projects were excluded from the dataset, cutting the number of search hits in half. Further analysis removed irrelevant email domains, resulting in an overall reduction of 200,000 documents—leaving only 100,000 for review. Spending just a few hours on this ECA exercise saved more than 4,000 hours of document review and hundreds of thousands of dollars. While the technology enabled rapid data exclusion, it took the experienced, skilled eyes of a human reviewer to unlock the full value of the ECA tool.

What Happens During Document Review and Analysis?

Document review Document review and analysis is the most time-consuming and costly part of the eDiscovery process. It involves large teams of lawyers examining the documents that have survived the culling process to determine their relevance to the case. During document review, data is evaluated for relevance, privilege, confidentiality, and privacy. Technology assisted review (TAR) typically happens during document review.

Before undergoing document review, it’s important to:

Identify names, dates, and keywords you will be looking for

Identify agreement on document tags and labeling (e.g., relevant, privileged, smoking gun)

Identify whether managed review or contract review attorneys will be utilized (for the first pass of the review and/or the entire review)

Identify quality control measures

Identify parameters for efficiency

Identify whether TAR will be utilized to streamline the review

As with early case assessment, technology can streamline the process with document hosting, review, and analysis. Examples are Relativity and ��ɫ Legal’s newly released Reef Review. offering a robust suite of analytics and AI features including continuous active learning, redaction, near-duplicate analysis, and daily review reporting.

How Is AI Streamlining eDiscovery?

AI has become an increasingly integral part of eDiscovery over the past decade. By applying data mining techniques, AI can narrow the set of documents sent for review—saving both time and money. AI-powered eDiscovery tools leverage technologies such as machine learning (ML), natural language processing (NLP), and, more recently, generative AI (GenAI). Here are some of the ways AI can automate and streamline key aspects of the eDiscovery process:

Technology-Assisted Review (TAR)

TAR (sometimes called predictive coding)helps prioritize and identify potentially relevant documents for review by learning from human reviewers' feedback. Over the past 10 years, TAR has become the most popular and powerful AI tool in the eDiscovery toolbox.

Concept Clustering

After files have been processed, concept clustering groups the remaining data based on concepts, topics, or ideas. This allows reviewers to examine documents based on similarity, remove groups of search-term “mishits,” and generally focus the review on more relevant content first.

Conceptual Search

Beyond keyword searches, conceptual searching enables users to search based on the context and meaning of the content, thereby improving the accuracy of search results.

Generative AI

Looking ahead, generative AI (e.g., ChatGPT) is poised to take on a more prominent role in eDiscovery. Take, for example, the “document dump” that sometimes happens the night before a deposition. GenAI may be used to quickly summarize documents or create a chronology, making a previously untenable eleventh-hour review possible. Likewise, GenAI can provide useful features, such as “ask my documents a question,” as well as potentially replace TAR as the key driver of document review itself.

Language Identification and Machine Translation

Some AI-powered eDiscovery platforms have language identification capabilities that can automatically detect and tag the language of documents. Likewise, advanced machine translation engines are often built directly into eDiscovery platforms for multilingual datasets.

Named Entity Recognition (NER)

AI-based NER can identify and extract entities such as names, locations, and dates from documents.

Sentiment Analysis

Sentiment analysis tools can help identify the tone and emotional context of communications.

AI in Action
Let’s say you want to find all documents that include references to “X” and any documents that include negative sentiments around “X.” Suppose you have 75,000 possible documents to review. Using an AI tool, you create your instructions, submit them, and then wait for documents to be reviewed. Each document gets classified in one of four ways: relevant to the issue, not relevant to the issue, needs further review, or has a technical issue. The tool will tell you which issue an item is relevant for (reference to X and/or negative sentiment about X). Now you have a much smaller pool of documents to review.

What Are Some Considerations for Multilanguage and Cross-Border eDiscovery?

The complexities of language and translation can make it difficult to understand and analyze electronic data in foreign languages. Cultural differences can also impact the interpretation and analysis of data, which can affect the accuracy and effectiveness of an investigation.

Multilanguage eDiscovery tools play an important role when electronic data is in more than one language. They use natural language processing (NLP) and machine learning algorithms to help investigators track, understand, translate, and analyze electronic data in multiple languages.

Cross-border investigations can be tricky, as laws and regulations regarding the collection, analysis, and transfer of electronic data vary by country. Investigators must have an awareness of data protection laws in each jurisdiction to ensure proper legal compliance. Multilingual eDiscovery tools offer legal and regulatory guidance, helping to ensure that no laws are broken within the jurisdictions in which the investigation is being conducted.

Data Privacy Compliance During eDiscovery

Data privacyand protection are paramount to maintaining the integrity of case materials. Companies need to keep data privacy laws and regulations front and center during eDiscovery. This means adhering to rules under such acts as the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and the European Union Privacy Directives (EUPD) for every jurisdiction in which they do business.

Companies must be mindful of how they identify and handle personal health information (PHI) and personally identifiable information (PII). Pinpointing where PHI and PII appear in datasets helps prevent potential data privacy violations. Advanced data mining technology can analyze large datasets to detect names, locations, organizations, and other sensitive details—and appropriately redact that information. It’s also important to note that the GDPR defines personal information more broadly, including categories such as sexual orientation and political beliefs.

Best Practices in Data Privacy

Only collect and process data that is relevant to the legal matter at hand

Avoid unnecessary collection of personal or sensitive information

Host ESI locally in the country/region in which it resides

Redact or anonymize PII

Identify statutory exceptions to applicable privacy restraints

Enact strong security measures to protect the confidentiality of data (this includes access controls and secure storage)

Ensure third-party eDiscovery services have robust data privacy protocols

What Are Some Challenges Associated with eDiscovery?

The Data Itself

The first and ever-increasing challenge has to do with data itself: the sheer volume of it, the varying types, and the disparate locations where it lives. With more people working remotely and on a growing number of platforms, enormous amounts of data are being produced every day. The more widely dispersed the data is, the more complex eDiscovery can be.

Resources

The size of a company and the volume of legal issues it faces can influence the ease at which eDiscovery happens. Larger companies are more likely to have internal IT resources to help with eDiscovery. Companies that do a lot of eDiscovery are more likely to have established and well-enforced data management policies.

Cost

Costs incurred during eDiscovery include data processing, hosting, review, and expenses related to specialized eDiscovery technology. The document review phase represents the largest portion of eDiscovery costs, which increase with the volume of data. To help manage expenses, some companies use contract attorneys for portions of the review process.

Data Privacy

Ensuring the security of sensitive information can be tricky. What happens if privileged documents are given to opposing counsel? This can happen under the best of circumstances, so it’s prudent to have a clawback agreement in place that allows for privileged materials to be returned without a waiver of privilege.

Data in Multiple Languages

Documents in multiple languages add complexity to the eDiscovery process, requiring translation as well as cultural sensitivity.

Cross-Border eDiscovery

This necessitates navigating different legal systems and data protection regulations while being cognizant of and complying with international laws.

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Legal

Streamlining Dispute Resolution through AI and Advanced Analytics

jpressman — Tue, 25 Apr 2023 15:01:51 +0000

Streamlining Dispute Resolution through AI and Advanced Analytics jpressman Tue, 04/25/2023 - 11:01

Blog

Big Data Background

While the use of artificial intelligence (AI) and advanced analytics in e-discovery can often seem like a black box, our webinar on Advanced Analytics & AI in Complex Litigations & Investigations from January 2023 aimed to break down the various technologies and demonstrate their value at all stages of a dispute.

Panelists argued that it is important, and in many cases necessary, to utilize AI and advanced analytics due to the sheer volume and diversity of data involved in present-day litigations and investigations.

As TLS President of Consulting & Information Governance Daniel Meyers stated, “The haystack is larger than it has ever been before, but this does not mean there are more needles; it just means that you have to work harder to find the needles.”

This is where deploying advanced analytics and AI is essential to separate the digital wheat from the chaff.

Pre-Review Analytics/AI

Document review is the most expensive part of the e-discovery process, typically comprising 73 cents of every dollar spent on discovery. Accordingly, the only way to truly control e-discovery budgets is through a laser-sharp focus on filtering out the digital debris before promoting documents to a document review platform. Moving beyond traditional filtering approaches (search terms, date filters, and deduplication), the panelists explained that an essential step to addressing large datasets is deploying Pre-Review Analytics—leveraging analytics and AI to further identify and isolate non-responsive information prior to commencing document review.

There are several tools to identify data that can be excluded from hosting and review. One important tool is email domain filtering—identifying emails that contain search term hits but, in reality, are spam, industry newsletters, or other automated emails without meaningful human content. Concept clustering is another extremely useful tool, as it organizes documents based on the presence of similar terms or concepts and can quickly identify large groups of documents about trivial and/or non-relevant topics that happen to hit on search terms. Concept clustering can likewise help to refine search terms and identify pockets of data that warrant closer analysis.

TLS Vice President of Consulting Services Michael Kriegal summarized, “The idea is that you are getting top-level information about your data without looking at each individual document.”

Panelists cited a case study about a global manufacturer facing a class action over alleged product defects. While more than 80 percent of the documents were culled after deNISTing, keyword searches, and date filtering, an additional 1.4 million documents were filtered out using Pre-Review Analytics. This resulted in cost savings of over $1 million by eliminating an additional 1.4 million documents from the document review universe.

Investigative Analytics/AI

In addition to using analytics to further cull the dataset, clustering can be especially helpful in internal investigations by quickly identifying whether there is any truth to the allegation(s) under examination. Another investigative tool is often referred to as “find more like these.” If a document is identified as being of interest, the system can find similar documents based on the words and phrases in the document. Communication mapping is another visual tool that shows who is talking to whom and how much. For example, communication mapping could show that an employee is consistently sending emails to their personal email address—raising a red flag.

Review Analytics/AI

Once the team is at the review stage of the project, there are additional tools that can be used to streamline review and further reduce costs. First, email threading is used to group emails (replies, forwards, etc.) together. This can reduce the review population by suppressing lesser-inclusive emails fully contained in later-in-time emails in the thread. Email threading generally improves coding consistency, since emails in the same chain are reviewed and coded together. Second, one of the most powerful tools in a large review is technology-assisted review (TAR).

While there are several different TAR flavors and workflows, TAR, or “predictive coding,” at its core “is a process where a smaller set of documents is reviewed and coded by subject matter experts, and those [coding] decisions are used to create a model that can extrapolate the coding decisions on the remaining unreviewed document set,” said TLS Director Brittany Field. Several factors—including data types, volume, rate of responsiveness, and timeframe—will determine the most appropriate workflow. A TAR 1.0 model is ideal for large datasets when time and resources are especially tight. A TAR 2.0 workflow is best for low-richness datasets or where the lawyers want to ensure human eyes are on every document that is part of the production.

Lastly, it is important to consider whether foreign languages are in the dataset and how best to handle those, and whether enhanced machine translation or human translation will be required. While many languages are supported by the various TAR platforms, there may be a document translation requirement for production.

By ��ɫ Legal ��ɫ

Legal

The Duty of Competence: How to Avoid E-Discovery Sanctions

dmarra — Mon, 10 Apr 2023 17:58:29 +0000

The Duty of Competence: How to Avoid E-Discovery Sanctions dmarra Mon, 04/10/2023 - 13:58

Blog

Every law school graduate understands the importance of competence in the practice of law. It is not only essential to client service but a mandatory requirement under professional rules of responsibility. Recently, several courts have sanctioned attorneys (and their clients) for failing to meet the standard of competence in the context of e-discovery. This article will summarize these developments and identify lessons learned to help you avoid the same in your practice.

Attorney Competence in Technology

The ABA Model Rules of Professional Conduct, Rule 1.1 (Competence) addresses technology as an everyday part of the practice of law. The rule and official comment state that all lawyers using technology need to be competent in that technology to zealously advocate for their clients. District Judge Iain Johnston reminds us in DR Distribs., LLC v. 21 Century Smoking, Inc., that the 2012 ABA Commission on Ethics directs us to what competence in technology means in the context of e-discovery, commenting that it "now require(s) lawyers to have a firm grasp on how electronic information is created, stored, and retrieved.”

Forty states have since followed and adopted the ABA amendment or drafted similar language, and at least three—Florida, North Carolina, and New York—now require attorneys to obtain CLE credits focused on technology and/or cybersecurity.
In the Rules, we look at Federal Rule of Procedure, Rule 26(g)(1), which requires counsel to make a reasonable inquiry that the discovery responses provided to the requesting party are complete and correct at the time of signature. In today’s world of electronic data, this requires some level of competence in technology.

Two recent cases highlight this need. In Ondigo LLC v. intelliARMOR LLC, the defendant’s counsel was found to have violated Rule 26(g)(1) and received sanctions under 26(g)(3) for failing to make a reasonable inquiry pertaining to its client’s email system. In DR Distribs., LLC v. 21 Century Smoking, Inc., District Judge Johnston took the opportunity to detail the defendants’ and their counsels’ failed technology and e-discovery competence as they attempted to self-collect cloud-based information.

Ondigo LLC v. intelliARMOR LLC

Ondigo LLC v. intelliARMOR LLC is a breach of contract bench trial out of the Eastern District of Pennsylvania. Rule 26(g) requires all attorneys to certify, after a reasonable inquiry, that a disclosure is complete and accurate when made. Referring to the 1983 Advisory Committee Notes for further clarification, Rule 26 is not a truthfulness rule. Rather, it requires that “the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.”

The facts of this case are simple; the defense counsel told the Judge they had corroborating evidence in the form of emails to certain witness statements that were at the heart of the issue for this matter. Defense counsel submitted that evidence in its post-trial Proposed Findings of Fact and Conclusions. However, the email was not previously disclosed during discovery.

In reply to plaintiff's Motion for Sanctions, defense counsel stated that the email in question was autodeleted from the email client because of its size, but it remained on the email server. It was not until after discovery had closed that the defense counsel asked the correct questions to learn that the email still existed.

The court found that the defense counsel’s statements and almost immediate finding of the corroborating documents were the evidence to prove that the original production violated Rule 26(g).

In making its determination, the court found similarity to DR Distribs., LLC v. 21 Century Smoking, where the producing party was sanctioned for failing to search and produce responsive documents from third-party cloud-storage repositories.

DR Distribs., LLC v. 21 Century Smoking, Inc.

In this trademark infringement matter, the defense counsel set the tone by claiming that electronically stored information was unimportant. As a result of this and many missteps, the defendant was sanctioned for not issuing written litigation holds, not requesting the disabling of auto-delete features for chat and email, being generally unfamiliar with where the responsive data existed, and self-collecting without attorney supervision or instruction.

In the end, an adverse inference was given to the jury, and they were informed of the extent of the spoliation and told that it may “consider that evidence.” The defendant was also precluded from using any untimely produced evidence, and a sanction of $2.5 million was imposed on the defendant and its counsel, to be paid 50/50 to the plaintiff.

In a final slap to defense counsel, District Judge Johnston required them to complete eight hours of continuing legal education on ESI and certify that they had read his opinion.

Judge Johnston cites a plethora of resources, including from the Hon. Shira A. Scheindlin & Daniel J. Capra’s Electronic Discovery and Digital Evidence (2009), where he quotes:

Lawyers have a responsibility to educate themselves and their clients about the new and pertinent legal and technical issues regarding electronic discovery. This is especially true when it comes to counsel's affirmative obligation to actively engage with his or her client in the process of identifying, preserving, reviewing, and producing electronic information. This includes the obligation to seek, as part of the lawyer's due diligence, all relevant information, positive or otherwise, which may relate to the claims at issue. To do otherwise is an ethical violation.

Conclusion

Every litigation/arbitration/mediation includes electronically stored information that should be preserved. What happens after that is specific to each matter, but the duty of competence imposes an ethical obligation on every litigator to understand, or have someone on their team who understands, how electronic information is created, stored, and retrieved.

TLS Senior Director, Stuart Claire

Legal

Redefining Document Production

dmarra — Fri, 17 Mar 2023 14:59:05 +0000

Redefining Document Production dmarra Fri, 03/17/2023 - 10:59

Blog

Discovery is the largest time and cost component of civil litigation. As the volume of documents in scope increases exponentially, teams need to manage them as “quickly, inexpensively, and efficiently as possible” (to quote the Federal Court rules).

One area commonly overlooked, which can significantly streamline the process, is the production format. As we explore below, this can have a material impact on time and cost for both sides.

Background – Near Paper (Image) Production

In the nascent days of eDiscovery, rather than printing every file, a digital image for each page of the document was created, stamped with an ID and page number, then exchanged – along with .txt files of extracted text and a metadata index file (dates, authors, etc.).

As the technology evolved and PDFs became an easily accessible file type, the preferred format of discovery in Australia has become PDF image productions – with the document’s text disclosed as a searchable layer within the PDF.

While discovery approaches differ, many teams prefer to convert every electronic document in scope to these stamped PDF formats before review. As the scale of data in contentious proceedings increases, this becomes very time-consuming – with days or weeks of delay to commencing review.

The Future – Native Production

As data sizes grow, the variety of data sources has too – with videos, complex spreadsheets, and 3D renders becoming commonplace. These types of documents should not – or cannot – be rendered to PDF for effective disclosure.

To tackle these problems associated with “PDFing” in general, disclosing electronic files in their native format has become the simplest and most cost-efficient production format – given no changes are needed.

Outside of renaming the files to match their assigned document IDs, native production doesn’t involve any transformation to the documents themselves – no digital images are created, and documents are produced as they are (e.g., Word documents as .doc or .docx and Excel files as .xlsx or .xls). Alongside the native files, a metadata index or load file is provided to ensure all agreed metadata is properly preserved and transferred.

The only exceptions are:

Email files – To remove the risk of forwarding/replying, emails are provided as .mhtml files, which can be viewed in a browser or eDiscovery tool.
Redactions – For redactions to be properly burnt into documents, they are converted to an image-based format. However, this generally impacts only a very small percentage of the documents that are ultimately disclosed.

What Are Other Legal Markets Doing?

Australia remains strongly attached to PDF production, arguably attributable to legacy from the Ringtail electronic review platform – but to provide a comparison:

United States – While the US legal market still tends towards single-page image productions, the issues cited above are even more onerous because of the scale of discovery involved. Preference is shifting to the native format due to its lower cost and speed advantages.

United Kingdom – Civil Procedure Practice Directions make native format the standard disclosure format. While imaged documents can be exchanged, this is generally limited to when a document requires redaction.

Near Paper vs. Native Format – Which Is Best?

For reviewing and disclosing documents in discovery, by far the best option is to keep documents in native format:

Native formats are generally much smaller than PDF-converted counterparts, meaning the cost of hosting documents is significantly reduced.
Hosting data produced from other parties is also significantly cheaper.
The time to import/export/transfer files is significantly reduced.
There is less risk of inadvertent metadata spoilage.
Documents can generally be viewed in their original format, preserving unique file properties.

When starting to handle documents for trial, it can be more practical and efficient to have documents converted to PDFs, stamped with doc IDs, and redactions burnt in. But, given that only a small percentage of documents end up being relied on as evidence at trial, it’s most efficient to only do this for data that will actually be used in evidence

By: TLS Director, APAC, Tom Balmer and TLS eDiscovery Project Manager, Christopher Lichtenberg

Legal

ChatGPT and its Relation to Legal Technology

dmarra — Wed, 22 Feb 2023 18:37:14 +0000

ChatGPT and its Relation to Legal Technology dmarra Wed, 02/22/2023 - 13:37

Blog

ChatGPT is the “revolutionary” AI tool everyone is talking about. From composing songs and writing college-level essays to finding and fixing bugs in code, the chatbot is both wowing and worrying the tech industry.

TLS has been inundated with questions from clients asking what we predict the impact ChatGPT will have on the legal tech industry and specifically, eDiscovery. The conversation that tends to follow touches on chilling topics such as AI replacing humans, AI versus human cost-effectiveness, and other concerns that we warm-blooded folk conjure when compared to our cold, data-driven competitors. It goes without saying that the use of AI within eDiscovery is becoming the norm. As our recent article on eDiscovery trends in 2023 suggests, tools like TAR have become critical in increasing efficiencies, reducing costs, and achieving higher degrees of accuracy over human review.

In this spirit, we thought we would put ChatGPT to the test and ask it a series of eDiscovery-related questions. We asked several senior eDiscovery professionals to create the questions based on the following criteria:

•   The question must be specific to eDiscovery.
•   You need to be able to answer the question.
•   You would expect an eDiscovery professional to be able to answer the question.

Our first question is generally broad.

1. How long will it take to produce 20,000 documents?

ChatGPT immediately identifies that there is no source for it to provide a concrete answer but still provides a comprehensive response. The acknowledgment by the bot that the eDiscovery process is a “complex and time-consuming process” and one that should be overseen by an “experienced eDiscovery professional” is encouraging.

Our second question relates to privilege.

2. Why should you not provide a native email if the attachment is privileged in eDiscovery?

TLS eDiscovery Director, Preeti Sharma, was impressed by the answer. She did, however, point out that while the response appropriately suggests providing documents in a non-native format, it primarily discusses the email metadata and omits the simple fact that the privileged document itself is contained within the native email as an attachment. What is contained is much more than metadata—it is substantive content.

To really put ChatGPT to the test, our third question touched on multilingual eDiscovery. Any legal professional who has worked on a matter involving multilingual eDiscovery knows just how much of a minefield it can be.

3. In a non-English eDiscovery litigation, when reviewing documents in a foreign language, what is the best way to input search terms?

We shared ChatGPT’s answer with TLS Global Director of Multilingual eDiscovery, Robert Wagner. Rob notes that some of the assertions are partially correct but are equally an “incredibly shallow” take on the topic. He also notes that some of the assertions are radically wrong—and weakly caveated. The main concern is that the type of person using ChatGPT for questions of this intricacy are exactly the those that need the most “hand holding” so they don’t trip over all the important points that were omitted.

To illustrate this point, ChatGPT mentions using a native speaker for inputting search terms in a foreign language, which is true. What's also true and missing: terms are a technical problem as much as they are a linguistic problem. Search syntax is of equal importance to the linguistic component of terms, and most native speakers lack the required syntax experience. And, those two components say nothing about embedding a translation strategy in the terms that amplifies your litigation strategy.

ChatGPT is clearly a very powerful tool and perhaps even warrants the term revolutionary. In the legal industry alone, firms are already leaning into the adoption of generative AI. At the time of writing, Allen & Overy announced that it had rolled out a chatbot named Harvey. Harvey had been tested by more than 2,000 lawyers across their global offices. Other legal chatbots worth mentioning include Billy Bot and LawDroid’s Copilot.

Our biggest takeaway from this little exercise is that expert knowledge and practical human experience remain key. When dealing with the technicalities of eDiscovery, there is nuance and intricacy that a chatbot might not be trained on or capable of acknowledging. We should be hesitant to rely too heavily on bots like ChatGPT when confronted with technical hurdles and instead defer to a human eDiscovery professional.

Rylan Goch, TLS Account Executive

8 Best Practices for Managing Multi-District Litigations

dmarra — Wed, 08 Feb 2023 21:35:02 +0000

8 Best Practices for Managing Multi-District Litigations dmarra Wed, 02/08/2023 - 16:35

Blog

Multi-District Litigation (MDL) is a complex judicial tool to create efficiency within the court system and consolidate matters from various jurisdictions into one. For those MDLs that traverse the country–opioid most recently and tobacco a few decades ago–the formula should include a documented methodology for the massive amounts of potentially relevant data collected from the parties.

Opioid MDLs in particular include significant amounts of data. What’s more, data in these cases is used across various subpoenas by different legal teams. This requires unique security access and coding rights for each legal team and that the technical team includes a quality control process that addresses consistency across matters. With proper planning, foresight, and structuring, the data dynamically provides for inevitable timeframe shifts, the addition of custodians, and the current unknowns. To address these complexities, here are eight tips for organizing your MDL data so that you are in the best position to add value to your legal team.

1. eDiscovery and Legal Teams Should Meet Prior to the Onset of the Matter

Both teams should meet to discuss current workflows and any potential workflows—e.g., if other parties join the litigation. It is often difficult to predict the path that litigation and data collection may take. It is thus advisable to maintain an open and dynamic workflow so modifications can be made. Insist on regular meetings with all teams to discuss current tasks and anticipate previously unexpected developments. All expectations and timelines should be discussed upfront so that expectations are aligned.

2. Keep Data in One Database and Secure it Accordingly

Since there may be any number of legal teams and subpoenas involved in one matter, proper data organization and security is imperative. Securing data in a single database is key as it could be shared by multiple team members across multiple jurisdictions for review and production. Legal teams should require consistent workflows based on the subpoena so that all involved parties have a record of where and when the data was reviewed. Maintaining a proper data manifest throughout the lifecycle of the case is essential. Logging proper security and documentation of security is also imperative due to the number of parties in the database.

3. Keep a Manifest of all Collected Data and Document All Production Processes

It is important to document all data collection—including the date of collection, date range of the data, and custodians of each document—and track any culling criteria, such as search terms and date restrictions used to promote data into a review workflow. Due to the duration of many matters, it is best to keep concise records so teams can track any historical changes to data collections and search criteria. Do not assume that all productions and review workflows will be the same. All changes in search terms and other culling criteria should be documented and organized in real time. Keep updated documentation of all searches and productions in a centralized location for all team members to reference. There should be no single point of failure in a large-scale review to ensure that all institutional knowledge is available regardless of personnel availability or changes and that there is a consistent review of any additional data that may be added to the database.

4. Encourage Legal Team(s) to Negotiate a Universal ESI Agreement

Due to the potential volume of relevant data for production, counsel may be encouraged to negotiate a universal ESI agreement for all parties. This will streamline the production process and allow for consistent, relevant data delivery as well as redundancy in the product delivered to multiple parties over time.

5. Track Review Coding with Specific Tags

MDLs can make coding and review more complex due to the same data being used in multiple subpoenas whereby relevance may be determined differently across the matters. Track coding with specific fields and tagging for future reference and potential cross-reference. Do not just consider the reason for relevance now but take into consideration the reason for any future relevance. Using clearly labeled fields within the database for each response is essential, especially when data needs to be queried for specific subpoenas.

6. Do Not Load Duplicative Data

Deduplication is usually not a difficult decision to make when it comes to data and cost efficiency, but when a long-term MDL review takes place, date refresh collections for various custodians can become common over time. Track all prior data and only overlay new data in the database to reduce coding discrepancies and inefficiencies.

7. Keep a Clean Document Copy

When producing data, do not permanently brand or redact documents. There is a high possibility that the same document or record will be used in a different jurisdiction. Branding a document permanently can cause issues with production inconsistencies or more work in the long run.

8. Keep a Clean House

There are myriad moving parts in an MDL matter. Keeping your database clean is a must. Organize your search folders and segregate them accordingly per group. This will allow you to manage database security for multiple parties more easily.

TLS Director, Project Management Bryan Hatten

Legal

Your Playbook for eDiscovery

dmarra — Thu, 02 Feb 2023 18:48:59 +0000

Your Playbook for eDiscovery dmarra Thu, 02/02/2023 - 13:48

Blog

Your Playbook for eDiscovery or Litigation Response Plan is a living document that is continuously modified to define an organization’s approach to the preservation, collection, processing, reviewing, and final disposition of data at the conclusion of a matter. It describes each step along the way; the roles and identity of each stakeholder; and the detailed consistent, repeatable, and defensible instructions for each step in the process. Preparing this document is itself a training exercise that uncovers unknown hazards that are now planned for and included in the Playbook.

The Playbook must address the different goals of the stakeholders representing IT, security and privacy, records, and HR. The Playbook is ultimately an organization’s resource serving as a reliable guide for when preservation is triggered.

Scope and Purpose

Communication is the overall theme of the Playbook. E-discovery has a language of its own and using a word or phrase incorrectly can result in different meanings being applied. Any litigator should agree that the misuse of a “term-of-art” could spell disaster during a trial. In e-discovery, when an individual unfamiliar with the interplay between e-discovery law and technology fails to navigate its treacherous waters, monetary sanctions, adverse inferences, and terminating sanctions are all potential outcomes.

The Playbook defines roles and brings people and processes from multiple disciplines together to achieve one consistent, defensible, and repeatable result. It sets expectations by documenting standard operating procedures and best practices. When done right, the Playbook will mitigate risk, create efficiency, and reduce costs.

The Playbook:

Prepares the organization to assess and understand its own technology and the information types created by that technology
Provides stakeholders with insight into understanding any limitations and sets expectations for counsel and the court
Provides needed information for the “meet and confer” and is a building block for a discussion on proportionality

Contents

The Playbook generally begins with the duty to preserve, but some may also include a pre-litigation and information governance process. When a potential trigger event occurs, the Playbook should provide a means to evaluate the event to determine if a duty to preserve exists.

Examples of Trigger Events:

Catastrophic event
Government subpoena
Receiving a complaint
Co-workers assume litigation is coming

Examples of Events that Require Further Evaluation:

Demand letter from counsel
Verbal statement from party or counsel

Those events that require further evaluation and fall short of reasonable anticipation of litigation may end the exercise or it may cause the event to undergo additional scrutiny over time. When the duty is triggered, the Playbook contains instructions on how to open a new matter, notify stakeholders, stop all auto-deletion practices, and issue the litigation hold. Playbooks should also contain guidance on how to interview custodians—individuals directly involved or individuals with knowledge of the matter to illicit the sources and systems that contain potentially relevant information. Preservation and collection instructions are contained in the Playbook and, depending on the specificity, there may be step-by-step instructions for certain systems, departments, or individuals.

Playbook appendices may also contain templates or drafts for certain documents including hold notices, reminders, chain of custody, collection and tracking logs, ESI specifications, etc.

Guidance should also be provided for the conclusion of the matter. All too often, data is left on servers that would have otherwise been destroyed under the retention policy. The final disposition of the data should be included within the Playbook. Every organization should know where its data is housed and when it will be deleted.

Data

The Playbook should contain preservation and collection checklists that are customized to the organization’s systems. Certain systems have appropriate self-collection features while others require digital forensics intervention. The Playbook should identify these systems, the administrator for each, and best practices on how to collect. Details such as filtering by date only and not keyword may make sense for certain systems.

The Playbook should address in great detail how data is collected and handled throughout the process. When a third-party service provider is engaged or internal resources are leveraged, communication becomes more critical. Memorializing the expectations and responsibilities between the provider and the legal team is critical for a successful relationship.

Comprehensive Playbooks include a standard workflow and even a workflow to address specific recurring needs of the organization. This means workflows include processing specifications that detail default options pertaining to email threading, deduplication, time zone, custodian organization, default metadata fields, etc. Processes could even address default options for specific types of matters (i.e., the deduplication process for a government or internal investigation is potentially different from civil litigation).

Relevance is obviously case-specific and not included in the Playbook, but an organization maintains a significant amount of junk email that obstructs the relevant communications. A Playbook should therefore embrace this and other institutional knowledge and include default culling and filtering steps to remove that junk before lawyers see the data.

Default review configurations and coding panels are included, and many organizations include Continuous Active Learning (CAL) and Technology Assisted Review (TAR) protocols as standard workflows for certain matters.

Implementation

The exercise to gather stakeholders and draft the Playbook is a significant step, and you should be congratulated for completing it. But implementation and training are key to ensuring this effort is successful. Each time the Playbook is referenced, a new opportunity is presented to monitor and measure the organization's response, address stakeholder input, and make process improvements as necessary.

Playbooks will become stale and should be periodically reevaluated, especially when changing or acquiring new technology.

The E-Discovery Playbook is a key resource for those organizations that find themselves constantly preserving and producing data. When followed, the Playbook provides a documented reference that is defensible and repeatable.

TLS Senior Direct Stuart Claire and Directors Nick Roscoe and Brandon Rimnac

Legal

Five Things to Consider When Thinking About an RFP

dmarra — Wed, 25 Jan 2023 22:22:57 +0000

Five Things to Consider When Thinking About an RFP dmarra Wed, 01/25/2023 - 17:22

Blog

A primary objective of an e-discovery RFP is to identify the best long-term partner for your organization. Providers’ core services—collection, processing, and review—are mostly the same. It is how these services are implemented and enhanced throughout each project and across the enterprise that sets providers apart.

It is difficult to measure and compare objectives within an RFP. To assist organizations in selecting the best enterprise partner, here are five ways to help enhance the RFP process.

1. Inquire with Service Providers Prior to Issuance of the RFP

Once the RFP is issued, most organizations appropriately require one official communication channel to keep all potential providers on an equal footing.

Prior to the issuance of an RFP, the organization may contact any number of service providers both to evaluate and learn from them. Legal service providers are uniquely positioned and at an advantage because they are exposed to the hundreds of e-discovery cases that law firms and corporate legal departments funnel to them.

For example, even the most sophisticated organizations lack true insight into how their processes compare to others in the industry. Service providers, however, play a delicate balance. They learn from their clients and implement those lessons, best practices, customized solutions, and workarounds. Many providers will also take it a step further and offer to evaluate an organization’s internal process and make recommendations on best-of-breed technology, workflows, and cost efficiencies.

2. Feedback from Service Providers Prior to Issuance of the RFP

RFP questions are often inadvertently subjective and left open to some interpretation. It may be worthwhile to share these questions with select providers prior to the issuance of an RFP to determine if their answers are the types of answers you hoped to receive.

Service providers receive hundreds of RFPs, and many have a team of subject matter experts scouring them to provide answers and outline scenarios. An organization may issue one RFP every few years and read six to seven proposals. Take advantage of those providers and ask them questions but be careful of nondisclosure agreements. Some providers will help craft questions specific to an organization’s needs and many will share previously received questions.

These service providers are in the best position to consult with organizations at this early stage to offer advice and assist in creating an agile, cost-effective, and efficient model that will lead to a successful relationship.

3. Engage Each Service Provider on a Project Prior to the Issuance of the RFP or Post issuance of the RFP as a Decision-Making Tool for the Finalists

The RFP should be the beginning of an important enterprise relationship. It demands a holistic viewpoint, significant skill and expertise in the underlying substantive work, and proactive and detail-oriented customer service. Issues will arise substantively and financially, and, depending on how they are handled, the relationship between the organization and service provider could crumble or be cemented.

For providers the organization is unfamiliar with, this can be a significant disadvantage. But it also presents an opportunity for the organization to engage these newfound providers on a ‘test’ project. During this ‘test’ engagement, the organization and provider learn in parallel about each other’s workflows, values, and culture. Final decisions are often based on whether the organization and provider have shared values and cultural alignment.

4. Question & Answer Period after the Issuance of the RFP

Once the RFP is released, communication is limited. Without an avenue to ask questions, the service provider is left to interpret questions and hope that they provided the requisite answers. A better approach is to give each participant an opportunity to ask written questions. The organization then compiles, answers, and returns those questions to each provider as a supplement to the RFP. This again keeps all providers on equal footing.

5. Pricing is Negotiable

Proposals are so much more than price. An organization that solely looks to price overlooks the more important factor—the relationship. Cost is a significant factor, but it is one of the only items of an RFP that is truly negotiable. The right enterprise partner, on the other hand, is an extension of the in-house team. They proactively identify and prevent issues while continuously keeping the client informed. Their priority is the client—a lack of communication should never be a concern. What’s more, the stronger the relationship, the more amenable the organization to price negotiations. The right partner means a mutual understanding that both parties are equally comfortable that they are receiving due compensation for their efforts. It is a business forged by respect for the successful completion of the project.

Conclusion

The RFP process can be daunting. It is time-consuming for the issuing party and responding providers. Working with providers during the run-up to an RFP is invaluable and helps to glean industry insight, feedback on the RFP process, and opportunities to engage newly identified providers in a project to evaluate their expertise and customer service. During an RFP, leave an opportunity for questions to remove as much subjectivity as possible, and remember, price is negotiable. A strong relationship and the alignment of values and culture means more than cost. A cemented enterprise partner will be aware of fluctuating industry rates and ensure they remain competitive.

By: TLS Senior Director Stuart Claire and RFP Manager Nairi Esayan

Legal

Staying Ahead of Regulation: What is on the Horizon?

dmarra — Wed, 11 Jan 2023 15:04:03 +0000

Staying Ahead of Regulation: What is on the Horizon? dmarra Wed, 01/11/2023 - 10:04

Blog

After successfully surviving the first month of Q4, we have our sights set on 2023 and what next year will bring. Winter aromas are not yet wafting from warm hearths, but the conversation with Vishal Parmar, Head of International Privacy at DaVita International, a healthcare organisation providing dialysis services, and Anna Nicola, Director at ��ɫ Legal ��ɫ, will spice up your coffee break.

Vishal, you serve as Head of International Privacy at DaVita International with healthcare operations in 11 countries around the world. The nature of your role leads you and your team to work closely with (virtually and in person) all business units in the organisation.

I am the Head of International Privacy reporting to the GC, with close interaction with other business leads. The International Privacy Group consists of functional DPOs and privacy professionals in every market. We meet regularly to ensure we are aligned on strategy, new geopolitical trends impacting privacy regulations, and more.

We understand the close relationship between technology and a successful privacy programme. I work closely with the Head of International IT: we formulate strategies and plans for the deployment of our international privacy framework into new emerging and upcoming markets and have created a strong collaboration throughout the year that I think is crucial to successfully protecting our teammates and patients.

It seems DaVita truly embraced embedding measures and privacy-enhancing technologies directly into the design of information technologies and systems. This truly helps privacy teams to be proactive and preventive but also ensures full functionality, end-to-end security, and visibility across the organisation. After 30 years of working with organisations all over the world, TLS witnessed how businesses have become increasingly engaged and tech sophisticated. Whilst having a multifaceted understanding of both real-time operations needs and the financial impacts of business decisions, in-house privacy and legal teams have to be increasingly data driven.

Privacy by design seems to foster cross-functional collaboration and lead to greater transparency across the business but I understand that it is also crucial to adapt it to the organisation, business units, and regions.

Our bespoke approach is driven from the uniqueness of our framework in the healthcare space. Projects are genuinely signed off with privacy as part of that initial scope of activities, so we limit or eliminate surprise elements and have constant conversations during the rollout of new projects. This includes the deployment of technologies: we think about privacy measures and controls, to implement, integrate and embed into new initiatives.

As an example, we have created a comprehensive Transaction Management Handbook for our M&A activities to ensure we are pragmatic and use solutions that are proportionate to achieving our goals, whilst remaining compliant with regulatory requirements. Efficiency and simplification are key drivers in that. The risk of creating programmes that are very theoretical and difficult to digest for non-subject matter experts is high.

My goal is to ensure that data privacy is lived out throughout the organisation. Privacy notices, policies and procedures are as interactive as they are actionable, and anything different can constitute a big risk to implementation and compliance. Making the information digestible is part of our role as experts, but I found having privacy champions outside the legal team to be extremely helpful. They help to ensure the privacy element is considered in their business initiatives but will naturally receive regular training and updates from the privacy team to ensure they are not siloed, and all divisions remain connected.

Seems this fits the need to adapt to change consistently across markets, business units, and times!

We are witnessing an interesting increase in regulatory complexity and can foresee the evolving data and tech landscape will lead to growing stakeholder awareness and involvement in the privacy programs of businesses. There are several conversations happening globally we can already see shaping new trends in 2023. To name a few: the CPRA, new privacy regulations in China and the use of third-party cookies, stricter requirements for cross-border data transfers, and new EU directives. Recently, privacy has evolved beyond regulatory compliance and into a new era of integrated data governance and trusted data use (of which your work at DaVita is exemplary).

From a privacy perspective, it’s crucial to look at all these changes on the horizon, how processes and procedures could be made easier, to what extent, and in what jurisdictions. This means you need to map out trends and changes and how strategy and overall framework will be impacted. It's tempting to have a one- size-fits-all solution or approach, but the truth is that route does not capture market nuances.

There are conversations we are following attentively including the draft Regulation on the European Health Data Space in Europe, which aims to make it easier to use (and re-use) electronic health data throughout the EU, and the Data Protection and Digital Information Bill in the UK, as part of the UK’s proposed data protection reforms following Brexit. We are also witnessing an increase in penalties for non-compliance in China, Japan, and Singapore (historically always lower than the EU).

International data transfers is another focus area for us. Over the last few years, we have on-boarded new tools to assist us in our intragroup data transfers, but that opens the door to other challenges and ensures we have a strong justification model in place. Amongst others – probably the most interesting – is how to truly achieve anonymisation for research purposes in the digital health space? This is particularly complicated from a healthcare perspective. Aggregation and pseudonymisation are other options discussed when considering solutions outside encryption. There is a real lack of consensus across the industry on how to achieve each of those different methods and scepticism as to whether new regimes in both the UK, where the UK data protection regulator has recently issued draft guidance on the topic, and Europe will be able to crystallise practical guidance. Common themes include whether complete or absolute anonymisation is even possible to achieve at all and whether that would be desirable in all circumstances, or whether irreversibility in its various guises suffices if the identifiability risk is acceptable. Much of this is still to be tested conceptually and practically. Things become even more complex if research is conducted internationally, where for example the standards on de-identification from a US healthcare regulatory perspective may not be consistent with the rules on anonymisation in other countries.

Despite the uncertainty that exists, I think we just need to remain pragmatic and make an objective assessment in the context of all the factors available to ensure personal data has been effectively anonymised.

Is there something that is working in your team that legal professionals can absorb to overcome challenges? It seems you act as a bridge across business divisions and thus see legal through a different lens. What advice would you give to the GCs across the industry?

Take a step back, evaluate the different business processes and focus your time on the areas that create risk. Ask yourself: who or what functions are the key movers and shakers in the business? What is it that they do and what role do they play in the overall success of the business? That’s where you should have a designated privacy champion in place because they are the critical local stakeholders who will ultimately help you deliver on your strategic aims. You need to have a process in place that helps people, you, and the team partner on these initiatives and establishing an appropriate governance structure can also help to reduce data privacy risks.

This article was first published in The Month November/December 2022 Edition by Global Leaders in Law.

Anna Nicola, TLS Director

Legal