New Massachusetts eDiscovery rules effective January 1, 2014

Posted on January 6, 2014 by Chris Bell

As of January 1st, 2014, new rules went into effect that change Massachusetts eDiscovery procedure. Lawyers who practice in federal courts won’t see much of a difference, but attorneys who practice primarily in state courts may be in for a shock.

According to Attorney Jonathan Sablone, a Nixon Peabody partner who spoke on the amendments at the 2013 Boston eDiscovery Summit, only vague eDiscovery guidelines for Massachusetts state courts existed prior to the new rules. The Massachusetts Supreme Judicial Court approved the uniform set of rules, which are based on the Federal Rules of Civil Procedure and will apply to all seven MA court systems.

Out-of-Control eDiscovery

The Reporter’s Notes to the 2014 Amendments explain: “The driving force behind the decision to consider rules for electronic discovery in Massachusetts is the staggering growth of information in electronic form today.”

At the 2013 Boston eDiscovery Summit, Attorney Francis Fox of Bingham McCutchen discussed why the court needed to codify Massachusetts eDiscovery rules. “The perception of discovery shifted around 1970 from the fair-haired child of Lady Justice to a ravenous wolf…Civil litigation may go the way of the horse and buggy if something isn’t done.”

Fox said if the system is to survive, there must be controls put on it. The new rules put a pre-trial emphasis on discovery intended to turn the current atmosphere of combat into one of cooperation.

Judge Frederic Rutberg of the Massachusetts District Court said the new rules are intended to make eDiscovery more manageable, while at the same time preserving the culture of Massachusetts courts.

Early ESI conferences

Massachusetts Rule 26(f) process is driven by attorneys, and assumes cooperation. The Reporter’s Notes state: “Unlike the Federal Rule 26(f), the Massachusetts version…does not require a conference between parties as a matter of course.” However, at any time during the first 90 days after the responsive pleading is filed, either party may request a meeting to develop a discovery plan for ESI (electronically stored information), no later than 30 days after the request is served. The request will be served on all parties, but not with the court. Within 14 days, the parties must file the plan and/or any disagreements with the court.

Topics to be discussed at the 26(f) “meet and confer” session include:

preservation
production format
metadata
production timing
privilege and confidentiality
cost allocation

If the parties cannot come to an agreement on their eDiscovery plan, the parties will meet before the judge in a Rule 16 conference. The court has the power to decide timing and extent of discovery, preservation and discovery of ESI, procedures for asserting claims of privilege, and cost allocation. Judge John Carroll, Dean of Cumberland School of Law, remarked that Massachusetts is ahead of the FRCP on Rule 16.

Inaccessibility

Inaccessible ESI is defined by the new Massachusetts Civil Rules of Procedure as “electronically stored information from sources the party identifies as not reasonably accessible because of undue burden or cost.” If a party claims the ESI is inaccessible, that same party bears the burden of proof. The court may order inaccessible ESI, but also has the power to shift costs to the requesting party.

ESI Format

If the requesting party doesn’t choose the production format, then the responding party may choose. If the first party does request a certain form of ESI, the second party may object, but then the second party must specify a format.

“Know what format you want before going in front of a judge,” Judge Rutberg advised. He said most judges of his vintage are not very knowledgeable about ESI formats. If you’re of the same vintage or simply wondering what format you should choose, read this article on native vs. TIFF.

Be Prepared

Familiarize yourself with the new Massachusetts Rules of Civil Procedure. Check out Jonathan Sablone’s helpful book Massachusetts e-Discovery and Evidence 2013 Edition. And remember, WarRoom Document Solutions is here to help with all of your litigation support and eDiscovery needs.

To TIFF or Not to TIFF

Posted on September 11, 2013 by Chris Bell

That is the question

If ESI could choose its own format, it would be native.

Maybe you’ve always TIFFed your legal eDiscovery productions and you don’t want to use another system. Maybe you don’t understand the difference between TIFF and native file formats, and you really don’t care because you’re not an IT specialist.

Here’s why file format matters:

• Use of native format cuts eDiscovery costs, which usually comprise the largest percentage of litigation expenses.
• Native files are automatically searchable, vs. TIFF, which are not.
• Native files include data not available on TIFF.

Takeaway:

Native saves you time and money and provides you with potentially case-changing electronic information.

Fabulous File Formats

OK, fight the temptation to let your eyes glaze over. Understanding the difference between documents formats will be important during 26(f) negotiations and requests for production.

A TIFF is a picture of your document. It is the oldest format for a scanned image, born in the 80s, like some of your staff. Since it is a picture, it cannot be searched unless text is extracted by Optical Character Recognition(OCR) and included as a separate file, called a load file.

Some metadata, such as the file creation date and time, can be preserved as TIFF tags in an additional load file, and searches must be run against all three files to find keyword matches and to get a picture of what data used to exist. Sounds cumbersome, time-consuming, and expensive? It is, but it’s probably the best game in town for paper documents. It is not optimal for Electronically Stored Information, which is multidimensional in nature.

A PDF is similar to a TIFF in that it is also a picture of your scanned document. PDFs are popular because they are viewable on almost any platform via a free reader, Adobe Acrobat. The metadata that can be embedded in a PDF is much more sophisticated than the metadata in TIFF extension tags, but still not as extensive as native files.

Native is a file format that preserves the file’s original format and includes metadata such as commentary, formulas, author, creation date, and creation time. It is automatically searchable. If ESI could choose its own format, it would be native.

Why Metadata Matters

Let’s take, for example, the subject of formulas. Why does it matter if you can’t see a formula? With a TIFFed Excel file, all you get is a column of numbers:

With a native file, it is possible to extract the formula to tell how those numbers were obtained.

So it would be immediately obvious that instead of:

=C1/AVERAGE(A1-A6)

The formula was in fact:

=C1/SUM(A1-A3)

Formulas offer important evidence and sometimes can be your case’s smoking gun. Don’t lose them to TIFFing.

OK, so you don’t want to miss outcome-changing information, and you want to save money, but you haven’t the faintest idea of how to draft a Request for Discovery for native files. Craig Ball provides an excellent example on his Ball In Your Court blog.

So why wouldn’t you go Native?

Since TIFF productions are static images, they can be a good choice if you don’t want to give the other side the advantages of natives. You can save the most money by doing a native discovery, reviewing for responsive docs in native, and then TIFFing only responsive docs and producing those.

Take a byte out of eDiscovery costs by avoiding unnecessary TIFFs. Call WarRoom Document Solutions to discover how to control your eDiscovery today.

“Why are you called WarRoom?”

Posted on June 7, 2013 by Chris Bell

We get asked this question a lot. After all, the name calls to mind a room at the Pentagon, filled with generals, intently debating lights on a map. In the legal industry, the term “war room” is used to describe the conference room where the case strategizing happens.

In Litigation Is War, Frederick Whitmer explains: “The whole idea here is to think about litigation as an enterprise in which you are trying — as Clausewitz says about war — to impose your will on the enemy. Litigation involves the exercise of force through judicial compulsion, to impose your will on your adversary. And, if you’re a defendant, of course, to resist the other side’s will being imposed on you.”

Just as military commanders use tactics to outmaneuver their opponents, so litigation attorneys leverage evidence in a structured approach to achieve favorable settlements and judgments. Some people dislike the analogy. But like it or not, seeing litigation as war is extremely illuminating for many lawyers.

Discovery Is a Battlefield

“Discovery is where it’s at — only 1 percent of cases go to trial.” ~ Shira Scheindlin, U.S. District Court judge and authority on eDiscovery

Despite what TV shows would have us believe, lawyers know that the real action of litigation happens before the trial, during the discovery process. Each side collects, processes, reviews and produces evidence pertaining to the case. So, as Frank Easterbrook, the Chief Judge of the United States Court of Appeals for the Seventh Circuit and one of the most cited appellate judges in the United States, once said, “That discovery is war comes as no surprise.”

Implementing a war room strategy is your key to obtaining a favorable outcome. Understanding your discoverable data before your 26(f) “Meet and Confer” session gives you a sizable tactical advantage. Whether you find the smoking gun, or you realize that a settlement is your best option, early case knowledge is power.

It’s also important to know which production format is most advantageous and cost effective for your case before the Meet and Confer. When you know and understand Electronically Stored Information (ESI) production formats (or include a WarRoom expert on your team), it is harder for the opposing party to use those formats against you. In addition, agreeing on a type of production format at the 26(f) helps contain both paper and electronic discovery costs.

If discovery is a battlefield, the Electronic Discovery Reference Model (EDRM) is the battle map. Discovery can take many different paths, but adhering to the EDRM helps you navigate the litigation minefield. EDRM best practices are good for your wallet as well as your case outcome. Following the EDRM ensures you don’t miss a discovery step that could save you time and money. For instance, processing such as filtering and de-duping defensibly reduces the total amount of data to review, making it easier to assess the responsive data and reducing the likelihood of accidentally turning over privileged information. Defensible discovery is essential for your litigation success.

For Want of a Lit Support Provider, the War Was Lost

Surrender is not an option. Don’t wave the white flag because you lack the right software or equipment for your discovery, be it data collection or document production. Whether you need help deciding on the best tool for your eDiscovery, or you are drowning in stacks of paper crying out for tabs, binders, and Bates stamping, we are your complete litigation support provider.

Our quality team is ready to support you in the document review trenches. We offer cost-effective online document management and review solutions as well as technical support. In war, technology can provide a decisive edge, so don’t get left behind. Our eDiscovery software products allow you to obtain the facts of your case faster. Easy searches bring more responsive data to your fingertips in less time. This leaves you more time to devote to the actual information and strategies you will employ.

While it’s true that most documents are born electronically, it is sometimes still necessary to print them. As you may have already discovered, many legal documents are a nightmare to print, either because they are so large or because they need to be properly organized and bound to be useful. We provide high-volume litigation printing, copying and document scanning. If you need a job scanned, bound, tabbed, OCRed or TIFFed, 24/7, with no mistakes, it has to be WarRoom. We hand-deliver the documents you need, when you need them.

We are here to meet your every paper and electronic discovery need, at any point in your litigation life cycle. Whatever your discovery requirements, it is imperative that you have access to the right resources and well trained troops all at the lowest possible price point for victory. Drawn out discovery may cripple the opposing party. Don’t let it weaken you. Call 855-WAR-ROOM to marshal your special forces.

Invest in Litigation Readiness

Posted on January 7, 2013 by Chris Bell

The digital universe doubles every two years, according to a December 2012 report from International Data Corporation. Companies are legally responsible for the growing Electronically Stored Information (ESI) created during business operations. In the event of a lawsuit, your business must be able to find and produce case relevant information.

Adopting an eDiscovery tool, either on your system or as a Software as a Service (SaaS), prepares your company for potential litigation and provides you with an edge at the earliest stages of your lawsuit.

One of the most expensive parts of litigation is identifying the relevant evidence in the massive amounts of stored data, and pulling that evidence from electronic storage without reducing or destroying it. A recent controversial Forbes article claimed that the cost to process, review, cull and produce a single gigabyte of data exceeds $7,000, but defensible eDiscovery doesn’t have to be so expensive. Choosing the right tool dramatically lowers costs, without sacrificing quality.

Leverage Technology to Reduce Costs

A rigorous analytics program is essential to discovering all evidence. Although there has been a lot of buzz about predictive coding, it has some disadvantages, including the risk of revealing privileged data and the over-production of non-relevant data. While simple keyword searching may not be sufficient to meet your discovery needs, a tool that employs concept clustering and one-click-entity searching will give you comprehensive, defensible results.

Your ideal software should be easy to use, so time isn’t lost learning a complicated system. Customized access levels keep team members on task and ensure document security. Cross browser compatibility allows easy access on all devices, maximizing your efficiency.

Having an eDiscovery tool in place before the 26(f) “meet and confer” session of your lawsuit gives you an advantage over your opponent, because you will already have a good understanding of your discoverable data. To maximize the benefits of a well-prepared 26(f) conference, make sure a member of your negotiation team understands the nuances of various data formats. Don’t go into a 26(f) session blind.

While eDiscovery software has many benefits, it should not be confused with do-it-yourself discovery. Implementing the right technology early enough in your litigation lifecycle significantly lowers cost, partially by cutting down on the amount of data the legal team must evaluate. However, the software cannot actually perform the review. Only a lawyer can review evidence.

Take Control of Your eDiscovery

Producing your own native files using eDiscovery software (as opposed to ordering them from a litigation support team) can save you $300/gigabyte. Every case is different, but if your production is 10, 15, or even 20 gigs, that’s a sizable savings. In addition to reducing costs, the right eDiscovery tool allows you greater control over your own productions. Prep a production for downloading, and decide what metadata is released.

Don’t worry that you’re on your own if you decide to implement an eDiscovery software solution. WarRoom Document Solutions offers hosting, training and support in all of our software products, and our Boston and Providence litigation support teams provide whatever additional customized services you require, at any point in your case, regardless of whether you are using our software. Both our software products and our service are flexible; we adapt to your needs.

Put our 19 years of industry experience to work for you; let us help you become litigation ready. Decrease your cost and risk of sanctions while increasing your chances for a favorable outcome. For advice about which software would best meet your regulatory and business requirements, call us at 1-855-WarRoom.