The U.S. District Court for the Western District of Pennsylvania established its E-Discovery Special Master Program in 2010, and to date, 52 lawyers have been qualified and trained to serve as EDSMs. It may surprise some people that a program where parties cover the costs of the special master usually results in substantial cost savings to those parties. Indeed, in other jurisdictions we have heard judges use the threat of appointing a special master as a tool to force parties to cooperate. But the reaction to the program has been very positive: Observed U.S. District Court Judge Nora Barry Fischer, who has been instrumental in managing the Western District program, “the parties and counsel who have used special masters are always happy they did.”
Among the advantages of appointing an EDSM is having someone knowledgeable about electronic data discovery issues available to quickly and efficiently resolve issues and disputes. This avoids delays and higher costs to both sides of having to resort to formal motions practice. Other advantages include:
• The ability to rely on a single EDD expert. Parties do not need to hire experts and then engage in adversary negotiations or proceedings.
• The potential to have discovery disputes resolved by someone other than the ultimate finder of fact. For example, this can help reduce concerns about “in camera” review of documents where there may be disputed privilege claims.
• The neutral can stand in the shoes of litigators, but also has specialized EDD knowledge and mediation training. That can lead to practical resolutions that parties may not have considered or adopted on their own.
• Guidance about technology tools, vendors, other resources, and alternative options that parties and counsel who do not focus on EDD might not know.
• Depending on the preference of the court and the parties, the EDSM can be appointed to mediate only or, as has been more common, to mediate first—but then be prepared to issue a "Report and Recommendation to the Court" (subject to the parties’ right to file exceptions) re: any issue where an agreed resolution is not achieved. Likewise, the EDSM may be appointed to address only a particular issue identified by the court or parties, or may be given broader authority to resolve whatever EDD or general discovery issues may arise.
FOUR CASE STUDIES
Here are a few examples of how the Pennsylvania program has worked in practice, each involving a different judge.
Case 1: Redaction and production of 1.2 million documents in two months. In a matter involving bankruptcy courts in two jurisdictions, both parties needed to arrange the redactions of personally identifiable information (such as social security numbers) and other sensitive electronically stored information from more than 1.2 million documents to be produced to a third party—in two months or less. To accomplish this manually would require 80+ reviewers working 40 hours per week at an estimated cost of more than $1 million. Instead, the EDSM—attorney Karl Schieneman, president of Review Less—used a visual clustering tool that accomplished the task on time, with 11 reviewers, for under $200,000.
Case 2: Reducing costs of EDD in a criminal case. A criminal defendant charged with stealing company funds claimed that documents in the possession of the alleged victim, his former employer, would exonerate him. The judge ordered the defendant to cover the cost of the discovery, but when the employer estimated a cost of more than $225,000 for the originally-requested volume—more than 1 terabyte—the defendant claimed that was excessive. The court appointed an EDSM to assist in analyzing the costs and alternatives. The EDSM reached a mediated resolution, by significantly narrowing the EDD requested, and allowing searches by the company’s IT professional, with a release of any liability—rather than requiring an outside vendor. The R&R recommended about $22,000 in reimbursable costs, inclusive of an hourly rate for the IT professional. The cost of the EDD was cut by more than 90%, a savings of more than $200,000. The employer sought about $19,000 in additional costs but the court rejected as not reimbursable. The final cost to the parties of the EDSM time was less than $7,000.
Case 3: Private plaintiffs sue municipality. Private plaintiffs sued a municipality, its chief of police and other officials, alleging that the police violated the civil rights of demonstrators during G-20 summit. The plaintiffs alleged that defendants had failed to comply with reasonable discovery requests and should be sanctioned and compelled to comply. After attempts to negotiate failed, the court appointed an EDSM, who was able to mediate a narrowed scope of discovery—and plaintiffs agreed to drop the sanctions request upon compliance by defendants. The discovery dispute was resolved in one afternoon, and residual issues were addressed in an undisputed R&R. Total elapsed time from appointment of the EDSM to filing of the R&R was one month, the cost was less than $1,750 per side and the case proceeded on schedule.
Case 4: Facilitating discovery in a complex case. A high-stakes patent litigation matter had hundreds of millions of dollars on the line, and involved big firm lawyers on both coasts, and a host of discovery issues. The appointment empowered the EDSM to address any discovery disputes as they arose. Some were EDD-related but others were more general disputes, such as did the defendant conduct a broad enough search for responsive documents and did the plaintiff spoliate evidence?
The second annual E-Discovery Conference at the University of Florida's Levin College of Law, held March 14 in Gainesville, Florida, came none too soon after this year’s non-stop winter. The lush, green campus and mild temps were a perfect antidote to snow—and the Levin Advocacy Center's modern venue was right-sized for this nascent conference.
The day-long conference's focus was “Telling The Story”—a refreshing agenda after the year's countless programs and panels across the globe that focused on predictive coding. It was a welcome chance to talk about the tasks that litigation teams typically perform, not just the onerous, budget-busting review efforts that usually dominate program agendas.
The conference was presented by UF and the Electronic Discovery Reference Model (EDRM.net), and hosted by two "brand-name" electronic data discovery attorneys. Tampa-based William Hamilton is a man who wears many hats. At Quarles & Brady, he serves as the firm's national e-discovery partner. Passionate about education, he serves not only as executive director of UF's E-Discovery Project, but teaches E-Discovery and Digital Evidence as an adjunct professor at the school. He also serves as the dean of graduate students at Bryan University, and of its E-Discovery Project Management certificate program. George Socha, principal of Socha Consulting in St. Paul, is the co-founder of EDRM.
The event, which kicked off with an 8 a.m. breakfast, was attended by national e-discovery experts, local practitioners and University of Florida law students, as well as, a large audience of remote attendees.
Having just moved to central Florida, it was a great opportunity to check out my new neighborhood's e-discovery community, and to participate in discussions dedicated to “getting it done.” The panels fostered discussions about—and demonstrations of—current analytical tools that speed all phases of discovery by helping legal teams gain a true understanding of the case.
The program was framed around product demonstrations. Normally, I am not a fan of public software demos. They are often pitched to the unsophisticated user and show features from a software point of view, not a business use case. And I’m not usually up for looking at multiple products in one day; but these demos were interesting. They were un-canned and ad lib in order to relate to issues raised by panel participants and questions asked by attendees. Because they were stacked one on top of the other, it made for an enlightening comparison—and review of how each might be deployed during a particular phase of discovery.
The day started with a strong introduction with the cheeky title, "It's the Story, Stupid!" that focused on drilling into the data to locate trends and patterns. Hamilton and Socha queried Rene Laurens, product specialist for Relativity Software, as he test drove its kCura product.
Michael Quartararo of Strook & Strook & Lavan lead the panel on collection which included a demo of Pinpoint Harvester. The message was clear: Begin crafting a story and use it to target the collection. Hopefully, as technology gains ground, litigators will feel more empowered to collect only what is truly potentially responsive, negating the need for wholesale harvesting and mammoth document reviews.
In a panel discussion, "Lock at Data Now: Test the Story," Julie Brown, litigation technology executive manager at Vorys, Sater, Seymour & Pease and veteran EDRM contributor showed the audience how to dive under the hood to identify gaps in collections, unearth themes, and get a jump on volume reduction before review. The demo was Nuix' eDiscovery suite. I hadn’t looked at Nuix in at least a year and it was helpful to get current on its ever-expanding bevy of tools and features.
The social media segment was not as an after-thought or just the flavor of the month. JudgeElizabeth Schwabedissen, a Florida General Magistrate, provided an up-to-the minute review of case law related to appropriate interaction with social media data and custodians. Nextpoint’s cloudpreservation was an apt example of how organizations are grappling with preserving and collecting data that was, until recently, considered too ephemeral to warrant information governance or litigation hold.
Legal project management software developer Exterro Inc. held a webcast Thursday afternoon to discuss the Federal Rules of Civil Procedure Advisory Committee’s recent approval of amendments to the Federal Rules of Civil Procedure. The 15-member Advisory Committee is a subcommittee of the Judicial Conference Committee on Rules of Practice and Procedure, also known as the Standing Committee.
Scott Giordano, corporate technology counsel at Exterro, moderated the webcast that featured the chairman of the Advisory Committee, Judge David Campbell (pictured left) of the U.S. District Court for the District of Arizona, and committee member John Barkett, a partner at Shook Hardy Bacon.
The Advisory Committee unanimously green-lighted the proposed FRCP amendments during a meeting that took place on April 10 and 11 in Portland, Ore. The proposed amendments before the committee reflected opinions that were collected during a six-month comment period that ended in February. More than 2,000 written comments were submitted, and three public hearings were held in Dallas, Phoenix and Washington, D.C.
The Advisory Committee approved major changes in discovery Rule 26(b)(1), Rule 37(e), which was replaced, and Rule 84, which was eliminated.
The new Rule 37(e) (PDF), also known as the Safe Harbor Rule, focuses on the preservation, loss and in some instances intentional destruction of electronically stored information. The rule now states that there is no strict liability if a party is unable to produce ESI, and strives to create a more uniformed culpability standard. See Figure 37e.
“We don’t live in a perfect world,” said Barkett during the webcast. “ESI is going to be lost.”
One change to Rule 21(b)(1) (PDF) was to move the proportionality factor into the scope of discovery, according to the webcast. The rule is designed to help judges and lawyers decide how much discovery is required in a particular case. See Figure 21b1. Click image to enlarge.
Rule 84 (The Forms Rule) was eliminated in an effort to streamline the process of adjusting court forms. With the removal of this amendment, the Administrative Office of the Courts can make form changes as needed in an effort to smooth out the process, and ultimately allow documents to become publicly available in a more timely fashion. The previous system could take between three to five years in some instances for updated and new forms to appear on the AOC’s website.
Other amendments that were modified and approved by the Advisory Committee include FRCP Rules 1, 4, 15 and 34, as well as the abrogation of presumptive limits on interrogatories, admissions requests and depositions, as previously reported.
“Uniformity is important to ensure that similarly situated parties are treated similarly, irrespective of the circuit,” said Barkett in a follow-up interview with Law Technology News. “Litigants are entitled to a measure of certainty as to the rules that they are expected to follow and inconsistent rules do not promote justice.”
Once, people entering the legal profession could safely assume that the word "metrics" had meaning only to statisticians, engineers and those in similar occupations. But today, with the growing sophistication of electronic data discovery, anyone running legal EDD projects simply must have a working knowledge of metrics. Just look at the renewed focus on constraining costs expressed in the proposed amendments to the Federal Rules of Civil Procedure. The bottom line: you cannot predict and control EDD costs if you cannot measure them.
In general, a metric is simply a measurement of some quantifiable element. This means that the first criterion for a metric is that it be measurable. In EDD, some measurable items often include data volume, time and expenses.
However, an element can be measurable without being relevant. Therefore, the second criterion is that the metric be meaningful in the context of the matter and to the specific client. Measurable and meaningful metrics can vary by phase. For example, the cost of printing or copying may be relevant during the presentation, review, processing or production phase, but have little or no importance during the analysis, collection or identification phases. Metrics that typically span all phases include labor costs, broadband usage, certain overhead expenses and electronic storage costs.
The term e-discovery covers all aspects of mining electronically stored information for relevancy in a regulatory, criminal or civil matter, including identifying, collecting, storing and searching. Using metrics is essential to accurately forecast the cost of EDD, budget for discovery, control costs in each matter as it progresses and create efficiencies over time. This is, of course, different from merely receiving a quote from an EDD e-discovery vendor and then seeing if it is met. For example, knowing how much it costs for Corp. X to collect data for one custodian from say, two standard data sources, for a one year date range, might be essential to claim undue burden to opposing counsel to restrict the scope of EDD. Yet many clients do not have access to this kind of sophisticated metric.
Beyond budgeting, metrics enable efficiencies in the EDD process. If you can standardize the overall process, you can apply metrics, identify improvement—and repeat. This is the application of basic Kaizen continuous improvement principles. Armed with metrics you can insist that, over time, counsel or vendors identify efficiencies at every step—to perform EDD quickly, more economically and more accurately. For example, that can result in less project management time billed processing a gigabyte of data, or more useless data being culled before a review.
A key first step to liberating the power of metrics is to adopt the special EDD billing codes designed for in-house legal departments, vendors and outside counsel. The UTBMS L600 Code Series was created by the Legal Electronic Data Exchange Standard Oversight Committee Board, based on the model proposed by the Electronic Discovery Reference Model (http://www.ledes.org) expressly for EDD use. Although no universal metrics currently exist for EDD and must necessarily vary by client and matter, the LEDES model for EDD divides the process into stages or phases, providing a first step to begin to measure costs for the key dimensions of EDD. From those baselines, you can work with vendors and outside counsel to seek efficiencies moving forward.
Industry standard metrics can be helpful at first, but because each corporate client has a different data universe, the goal is to develop metrics for a specific client based on actual EDD over time. For example, one client may find its employees generally have less gigabytes of email stored per year than the industry average. With the help of a good vendor cooperating with IT and legal, baseline metrics and costs can be developed and continually fine-tuned. For example, after measuring perhaps a dozen matters, knowing that on average it costs $800 to collect and move to a document review tool one gigabyte of email would be a key metric for forecasting cost.
The EDRM Metrics Model is also a valuable framework to help users think about EDD metrics. It provides a framework for planning, preparation, execution, and follow-up of EDD matters and projects by showing the relationship between the EDD process and how information, activities and outcomes may be measured.
By combining metrics, such as the average cost to do X, with the relevant pricing model, it is possible to create a budget calculator designed specifically for EDD. Most of these have already incorporated a number of assumptions, but they normally include the ability for users to make modifications. Typically, these programs base budgets on the cost-per-gigabyte of data by unit, sometimes referred to as the cost-per-volume. This means that users may need to perform some tweaking—as documents vary widely in the amount of gigabytes used; for example, one gigabyte might hold a 6,000-page document or a 60,000-page file.
However, it can be just about impossible to develop meaningful metrics or budget calendars over time if the client uses different vendors and/or counsel, or does not require the same standards. A good EDD vendor working with client’s legal department and IT team can help put a metrics and cost containment program in place.