Avoiding E-Discovery Disputes

And keeping the Judge Happy

Judge David HarveyLLB AucklandM Jur WaikatoPhD Auckland

A Judge of the District CourtAucklandNew Zealand

Judge David Harvey has been a judge of the district court in New Zealand for 25 years. He also teaches law and information technology for the Faculty of Law, Auckland University, and has written a text on Internet and computer technology law titled internet.law.nz, now in its 3rd edition. He has written extensively in the field of law and technology and has presented a number of papers both in New Zealand and internationally on law and technology matters.

He graduated with an LLB from Auckland University in 1969, MJur from University of Waikato in 1994, and PhD from Auckland University in 2012. His doctoral dissertation was on the influence of a new technology (the printing press) on law and legal culture in England in the Early Modern period.

Judge Harvey has an interest on the immediate and wider impact of technology on the law and legal culture. He has co-written an article with Daniel Garrie on New Zealand’s new Discovery Rules and has delivered several presentations on the subject.

Topics

• The nature of the E-Document• The E-Discovery Process• Counsel’s Obligations– The checklist– The Electronic Bundle Practice Note

• Knowing the Technology• Working as a Team

TECHNOLOGY

Current State of Documents and Data in E-space

• Paradigmatic change challenges our assumptions about and expectations of information.

The Digital Paradigm

• The digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional thinking about documents.

• Instead we should be thinking about “information”

The Document in E-Space

Tangible Material

• Discovery and searches are based on the quest for information

• Information on paper – easy for a reader to access that information long after it was created

• Tangible – has a discrete physical existence

Nature of an “E-Document”• An e-document is not “out there

somewhere” like a book in a library

• An e-document is a “process” whereby unintelligible pieces of data – distributed over a storage medium – are assembled, processed and rendered legible

• As a single entity, the document is “nowhere”

Technology and “Functional Equivalence”

• Involvement of technology makes the e-document paradigmatically different from hard copy.

• “Functional equivalence” is used to bring cyber searches into line with hard copy searches.

• An electronic document may be seen as “functionally equivalent” in the presentation of information in readable form.

• Why are we referring to “documents”

• Reflect a past paradigm where information was stored on paper

• Information is a better word

• Or perhaps Electronically Stored Information (ESI) if you want precision

ELECTRONIC DISCOVERY

What is E-Discovery?

• The methods by which the parties use electronic means to assist in finding, identifying, locating, retrieving, reviewing, listing or exchanging documents to satisfy discovery obligations

• Rules do not mandate the use of digital tools and methods to find, identify, locate, retrieve or review documents

• But such tools and methods, when properly implemented, can lower the monetary costs of the litigation and accord with cost and proportionality principles

Understand the Process and Purpose of E-Discovery

Initial Objectives

• A pre-existing good information management system is an excellent starting point

• Reduce the volume• Restrict to relevance• Identifying classes of information – early case

assessment (ECA)

Why is important to know this stuff?

• Lawyers and Judges MUST be aware of the elements of the E-Discovery process

• Lawyers need to satisfy the Court (in disputed cases) that proper processes have been undertaken

• Judges need to be able to craft proper directions and discovery orders that recognise the potential (and limitations) of technology

Why is this so?

• Look at the Checklist and the Electronic Bundle Protocol

• Do you REALLY think you can avoid understanding the technology

The Checklist

The New Zealand Checklist

Designed to assist the parties carry out discovery

The checklist itself highlights ways to reduce some of the listing and exchange costs -“to reduce unnecessary costs of listing documents parties are encouraged to:

a) Use native electronic versions of documents as much as possible; andb) Use the extracted metadata from native electronic documents instead of manually listing documents; andc) Convert documents to image format only when it is decided they are to be produced for discovery; andd) If document images are to be numbered, only number those images if they are to be produced for discovery.”

Underlying Premise

• Co-operation between counsel to limit discovery to what is– Reasonable– Proportionate to the issues in dispute– Relevant

Assessing Proportionality

• Review pleadings to identify document categories

• Identify – Location of documents– Document custodians– Volume of documents

Likely Volume and Cost

• Estimated cost of discovering identified material

• Includes – document review for • privilege, • confidentiality and • Listing

• Is specialist assistance required to help make informed decisions

Assess and Discuss

• The ongoing responsibility of co-operation and conferring

• Is the estimated cost proportionate to the sums in issue

• Might a tailored order help keep costs down

Extent of Search

Two Points

• Identify whether methods listed in the tailored discovery provision may help locate electronic material

• Consider seeking a tailored discovery order• Proportionality and cost govern criteria– Number of documents– Nature and complexity of proceeding– Ease and expense of retrieval– Significance of any document located in search

Tailored Discovery

Consult, Confer and Co-operate

• Try to agree to a proposal for a discovery order with respect to:– Categories of documents to be discovered –

should be limited to what is reasonable and proportionate• Subject matter• Date Range• Types of Documents• Key individuals – document custodians

Methods and Strategies for locating Documents

• Agreement on methods and strategies that will result in a reasonable and proportionate search– Keyword searches– Other automated searches and techniques to cull douments

• Concept searching• Clustering technology• Document prioritisation (predictive coding)• Email threading• Any other tool or technique

– Near duplicate identification– Specialist assistance?

• Consider a staged approach to discovery

Listing and Exchange

Listing and Exchange Protocol

• Protocol provides for way in which information should be presented and summarised

• May be modified by agreement in writing• Arrangements for electronic material that

contains relevant unseen information

Listing ESI

• Listing ESI requires different considerations– Native file format– Extracted metadata– Use image format only if document to be

produced for discovery – should be searchable– Only number images to be produced for discovery

Presenting Documents at Trial

Consult and Confer - Again

• Must consider how documents will be used efficiently

• Whether an electronic bundle should be used• Ensure listing and exchange is compatible

The Electronic Bundles Protocol

2013 Practice Note

• A guideline for lawyers and judges• Intended to encourage and facilitate use of electronic

bundles• Sets out the classes of information that may be in EB

– Documents referred to in a hearing– Affidavits– Pleadings– Briefs– Submissions– Authorities

• Used when “common bundle” would exceed 500 pages

Observations

• Protocol applies to civil and criminal proceedings

• Emphasis on counsel’s duty to co-operate• In PDF format• Must be searchable• Folders used within the bundle

• Mirrors the “Eastlight File” format of hardcopy production

• Uses language of the hardcopy paradigm

• Adobe Acrobat and Foxit Phantom PDF both allow information ordering by tabs

• Keyword Searching• Duplication and Exclusion• Concept Searching• Clustering• Document Prioritisation aka Predictive Coding• E-mail Threading• Near Duplicate Identification• Native File Review

Technology and E-Discovery

• Key word searching is a fairly blunt instrument but may be useful for Early Case Assessment

• Key words create a black or white scenario based upon whether or not a document contains a word or does not

• The difficulty with key word searching is that it may result in irrelevant documents being identified because the key word selected may have different meanings or context to what is desired

• Ideally the construction of the search string or key words should be discussed with other parties so that the key words may be agreed

• Because of its limitations, key word searching is not an ideal method of cutting and filtering documents and other automated searches may be preferable

Search – Keyword Searches

Involvement in Effective Keyword Searching

• Cannot proceed from an uninformed perspective.

• Examine the approach of the parties• How did they go about keyword

selection and search construction• Is the dispute about definitions of

the keyword search or something else

• If judge is required to adjudicate a keyword dispute consider a mixed process– Sampling and testing followed by– Manual review

Duplication and Exclusion• The process of identifying and removing

duplicate documents from a collection of documents so that one unique copy of each document remains

• A cryptographic hash function such as the message digest algorithm five (MDA5) may be used to generate a digital fingerprint for an electronic document.

• The digital fingerprint of a document can then be electronically compared against the digital fingerprint of any other document to determine whether the documents are exact duplicates

• Duplication may also be implemented by using a cryptographic hash function applied to a group of documents

Duplication Problems• In the paper world the process of

duplication required visually sighting documents

• Some lawyers are still using the same practices that they used when reviewing paper documents adding unnecessary cost and burden to the discovery process

• It is not unknown for the document review process to be carried out by printing out hardcopies of all the electronic material and then laboriously reading through document by document to ascertain if there were duplicates

Concept Searching

• Useful when large volumes have to be examined and the search attempts to match results with the query conceptually

• Methodology is based not upon key words but upon the subject matter of the document paragraph or sentence

• Concept searching adds additional information to the very basic key words as it evaluates both words and the context in which they appear

Clustering

• Clustering groups documents by identifying conceptually alike documents and the technology breaks them up into groups of similar documents. The technology is calculated through the mathematical relationship between the text context of the documents.

• There is an advantage with process in that similar issues can be investigated at the same time instead of reviewing different documents throughout the document review set.

An Example

• Someone creates a word doc, then prints it PDF, another person opens the PDF, cuts and paste the text of the document into an email and emails that to third person.

• That person then prints the email, and a fourth person scans the email to TIFF.

• Cluster analysis could possibly put all of the files together in a cluster - four types of files in the cluster (DOC, PDF, MSG, and TIFF) all because the content is similar.

Near Duplicate Identification• Not referred to in the New Zealand checklist

• Near duplicate technology identifies documents that have similar content although not an exact duplicate

• The technology groups all of the near duplicates together so they can be reviewed at the same time allowing the reviewer to quickly focus on the differences and move through the documents more quickly and accurately

• Email threading and near duplicate technology can be used on paper documents as well as e-documents

• The accuracy of the paper documents will depend upon the quality of the text searchable content or OCR – (optical character recognition) when the document is scanned

Email Threading

• Many emails contain earlier message and are constructed in the form of a thread or a chain

• Email threading technology is essential to respond to the problems caused by these chains

• By identifying the end point of the email chain, redundant emails do not have to be reviewed

• Threading organises emails into conversations, revealing the context of the communication and reducing review time by 50% or more

Predictive Coding in Practice

Most expensive component of any document production remains the lawyer reviewKeyword search: an imperfect state-of-the artIs there a better culling tool?

Native File review • Allows lawyers to view documents in the format

in which they were intended to be viewed • Spreadsheets and databases may only be able

to be accurately assessed for their native applications. This can have considerable cost saving

• Converting all documents to PDF prior to the document review (rather than after it) will usually add unnecessary expense to the discovery process

• It will usually be more efficient to review documents in their native file format and then only convert the relevant documents to PDF for the electronic exchange of documents

ADVICE FOR THE BAR

Knowing Saves Time

Ensure that both sides know something about their clients systems such as:• Know and verify how to manage

information• Know what systems may be impacted• Know what systems are involved• Bring technical documents including

data map

• It is implicit that all parties including the judicial officer should have the knowledge of the benefits, advantages and disadvantages of the various documents sorting and document review technologies that are available

• At times, depending upon the nature of the documents and their extent, such knowledge or awareness is going to have to be detailed and specific

• May have an impact upon a tailored discovery order

Meet and Confer

• Critical part of the process

• Assessing proportionality

• Determining extent of search and strategies

• Checklist premised on meet and confer

Focus on the Facts and Issues

• Identify the issues to determine relevance

• Then focus on how e-discovery facts can achieve information location

• Think in terms oftechnical specifications

• Checklist requirements of assessing proportionality and the extent of the search

Remember to educate and listen as counsel and parties

are not likely technology or e-discovery gurus.

For E-Discovery specialists

• There are ways utilising meet and confer, conferencing, careful case management, scheduling conferences and time tabling

• Judicial Activism

Try to avoid a disputed E-Discovery Hearing

• New Zealand and England use variants of a checklist or questionnaire.

• The checklist provides a very useful roadmap to assist parties to co-operate over how discovery will be conducted.

• The checklist establishes a framework to assess a proportionate and reasonable search for documents tailored to suit the requirements of each matter.

• All of these discussions must take place prior to the first case management conference.

• The Checklist can be used by counsel and the Judge

Use a Checklist as a Guide

Working as a team

• Meet and Confer is one aspect• Case Management Conference brings in the

other players• Judge can assist in the co-operative process

• Use the case management conference actively to superintend the discovery process

• Encourage narrow targeting of requests for ESI.

• Consider imposing limits on E-Discovery.• Consider sampling to determine

relevance, need and cost of more expansive discovery.

• Develop procedures for production of information in usable form.

• Develop procedures to deal with inadvertent disclosure of privileged material.

• Consider cost shifting if the information sought is not reasonably accessible – may require a consideration of document storage and retention policies of the party in question.

Using the Case Management Conference

• Always encourage co-operation and continually remind the parties of the necessity for reasonableness and proportionality.

• The obligation to co-operate should be an on-going requirement.

• Because E-Discovery is process driven, it is important to cooperate over at all stages of the process, especially the with Keyword searching or using Predictive Coding.

For Judges - Emphasise Co-Operation

• Is the scope of discovery reasonable in the context of the case

• Is the scope of discovery proportional to the matters at issue

Use reasonableness and proportionality as a yard stick to measure stances of counsel on E-Discovery issues.

What is Proportionality?

• The relationship between cost and value in the proceedings

• Is the extent or manner of the discovery sought justified by the amount and matters at issue in the proceeding.

• Focus and reduce the issues to be determined within the framework of the pleadings.

• Proper Case Management will distil the main areas of dispute

• May only be about a technological method or the scope of discovery of a class of documents

Worst Case Scenario – A Disputed Hearing

Looking Ahead• Particular methods of discovery will

depend upon the case in hand

• Different products may be more relevant to the different parts of the discovery process

• Lawyers and Judges are going to have to become intimately aware of the technologies that are available and of the technological processes that can underlay the discovery process if the advantages of cost reduction and proportionality that underlie the rules are to be achieved