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.

Hosted Review: No Downtime or Downside

Posted on March 13, 2013 by Chris Bell

You’ve been looking forward to a night in with your special someone. You slipped into something more comfortable, made some popcorn, and snuggled up on the couch only to discover Netflix was down. And why? All because of another Amazon Web Services cloud outage.

Missing out on a movie is one thing. You could always listen to music, play a game or even talk to each other. But what happens when you and your legal team are trying to review documents on your public cloud and suddenly you can’t access your data? When your Electronically Stored Information (ESI) isn’t available, you lose billable hours, every legal team’s worst nightmare.

Not All Clouds Are Created Equal

In a public cloud, you share hard drive space with other companies. Sharing storage might work well enough for movie streaming or social networking, but it isn’t the most secure or defensible choice for your confidential litigation documents. With a private cloud to host your review, you gain the benefits of your own server without the costs.

A 99.99% service level agreement guarantees you 24×7 uptime, from any of your devices, anywhere in the world. In the event of a cloud malfunction, a backup cloud takes over, allowing you the same access to your data as before. Just as a generator is essential to the reliable running of a hospital, a dedicated server ensures the integrity and availability of your eDiscovery project.

Since you can access your data from the comfort of your own office or home, you probably won’t be visiting the physical location of your servers. Yet their geographic location is still an important consideration. Selecting an American data center to host your server avoids complications with foreign eDiscovery regulations.

Virtual Collaboration in Legal Review

When combined with a Software-as-a-Service (SaaS) review tool, a private cloud provides you billable hours by increasing the efficiency of your team:

Access documents from any device, anywhere, 24×7.
Assign documents to pools of users, so any member of the team can finish a document and move on to the next. No more time wasted waiting for new assignments.
Control access levels of your legal team on a need-to-know basis, especially useful when sharing documents with expert witnesses.
Download documents without slowing other team members down.
Track the overall progress of the review.
Track the review status of individual documents, saving time by preventing multiple reviewing of the same document.
Share searches across the review.
Easily see and jump to linked documents, such as email attachments.
Read redacted text before it is permanently burned on.
Tag privileged documents.

With a hosted review, you benefit from the labor and cost efficiencies of the cloud without sacrificing access or security.

When preparing for litigation, you can’t afford downtime. Call WarRoom Document Solutions and discover the best dedicated review solution for your needs.

SaaS Up Your Data Collection

Posted on February 14, 2013 by Chris Bell

Back in the early days of eDiscovery, collecting Electronically Stored Information (ESI) from computers in a defensible manner could be quite costly. Forensic technicians charged $500/hour, and often traveled to many different locations to harvest the responsive data.

In 2013, on-site collections for electronic evidence aren’t usually necessary. A Software as a Service (SaaS) data collection bypasses expensive specialists and travel costs. Cloud collection pulls data remotely in a sound and defensible manner for a much more affordable price.

Preserve your data integrity

Simply by copying or moving a file, you can alter crucial information. Increasingly, courts are expecting unaltered electronic evidence to be produced. SaaS data collection prevents inadvertent file alteration. Avoid spoliation claims, sanctions, and adverse judgments with forensically sound remote data collection.

In addition to lowering your risk of benchslaps, remote data collection allows filtering by file types. SaaS filtration and de-duping in the collection stage of your discovery project defensibly decreases the cost and size of your eDiscovery work. Filtering also minimizes your risk of accidentally producing privileged information.

The right tool for the eDiscovery job

Cloud data collection takes some of the pressure off your IT department. SaaS means there is no installation, administration or maintenance of software or hardware adding to the IT workload. Also, while your internal IT department does an excellent job of meeting your company’s technology needs, collection in compliance with Justice Department practices is most likely outside the scope of their expertise.

Just as your IT department probably doesn’t know much about defensible data collection, IT backup programs weren’t designed to defensibly collect evidence. Employing backup technologies to collect your data is like using a slotted spoon to ladle soup – it takes forever and much of the data remains uncollected. A cloud-based eDiscovery collection tool provides time- and cost-efficient results.

Conducting a SaaS collection doesn’t require a degree in computer science. A data collection software wizard guides you through the process. It’s easier than a mail merge!

Anywhere, anytime, any device

Cloud equals convenience. A SaaS collection tool pulls data from laptops, desktops, servers, network shares, virtual machines and cloud servers. Collections can be performed at any time from anywhere in the world.

You have complete control over your data collection. Although your data custodian has the option of suggesting responsive files, you and your legal team make the ultimate decision about what data is pulled. Perform collections from any device with a web-browser. If you have a minute on the train, check your collection status from your smart phone or tablet.

Your data collection is accessible to you and your team by any device, but not to anyone else. We understand that your confidential information must remain just that. Your data is encrypted and stored in tamper evident containers. You can further increase your security by choosing strong passwords, changing them frequently, and disabling wireless and Bluetooth when not in use.

So, go ahead, miss the Nineties because music was better and retirement funds were flush. But don’t cling to outdated and expensive data collection methods. Maximize cost savings, time savings and your productivity with SaaS collection.

Call us at 1-855-WAR-ROOM to find out which cloud data collection method best meets your needs.

Don’t Jump the Gun with Predictive Coding

Posted on January 28, 2013 by Chris Bell

Global Aerospace Inc. et al., v. Landow Aviation, L.P. dba Dulles Jet Center, et al.

Results are in from the first case where a judge mandated the use of predictive coding, despite initial objections from the plaintiff that the technology is not as effective as human review. The Wall Street Journal Law Blog reports predictive coding used in the case found 81% of relevant documents.

The ABA Journal compares these results to the 60% accuracy rate for human reviewers estimated by a 2011 Richmond Journal of Law & Technology article. Some claim the comparison proves the superiority not only of this particular review technique, but also of artificial intelligence over lawyers.

This conclusion might be jumping the smoking gun, literally. What if the most relevant data is contained in the missing 19%? Initially, the Global plaintiff argued that all relevant evidence must be produced, which is, after all, the goal of defensible discovery.

Predictive coding, also known as Technology Assisted Review (TAR) and Computer Assisted Review (CAR), is a very new review method. Contrary to what eDiscovery headlines may lead you to believe, TAR is currently used by only a small portion of the legal community. Industry standards are not set, and there is little agreement about when and how it should be used. This disagreement can lead to expensive and often futile negotiations with opposing counsel.

When predictive coding is employed, a team of highly-paid human experts, specializing in statistics, law and technology, must train the computer in what is relevant by coding a sampling of documents (in the Global case, 5,000 documents). The coding is then applied to the rest of the documents to determine relevancy. If the initial sample is not correctly coded, the results will be drastically inaccurate. Therefore, human intelligence is still essential to the process.

In addition, Global is a single case with a relatively small sample size. Even if predictive coding continues to provide consistent, reliable results, it is not a one-size-fits-all approach for document review. If it is widely adopted in the future, predictive coding will never replace other search technologies or human intelligence; it will simply be another option in your litigation toolkit.

In most cases, a carefully planned discovery process combined with a multimodal search approach yields the most accurate results for the least cost.

Drawbacks of predictive coding

Small mistakes early in coding can create false positives and miss relevant documents.
Accidental disclosure of privileged information is more likely.
For the sake of transparency, CAR/TAR/predictive coding often requires disclosure of all non-privileged training documents and coding to opposing counsel, regardless of relevancy. How much do you want opposing counsel to know?
The cost of predictive coding/CAR/TAR negotiations can cancel out any savings the approach might otherwise generate.
Predictive coding/CAR/TAR only makes sense for extremely large sets of ESI. How big is your data?

Technology should be used to reduce review volume, not to replace human review. Human intelligence cannot be fully automated. A concept-clustering search approach combines the best of human and artificial intelligence.

Contact a WarRoom litigation support consultant to help you determine the strategy that minimizes your risk and cost.

Don’t Forget About Paper Discovery

Posted on January 16, 2013 by Chris Bell

Even as electronic data grows, so does our use of paper. According to The Economist, the average American uses the paper equivalent of almost six 40-foot trees per year. The EPA reports that the average office worker generates approximately 2 pounds of paper and paper products every day. We’re a long way from realizing the paperless office.

Since paper plays such an important role in business operations, make sure you don’t forget about it when planning your litigation discovery. If you fail to produce relevant paper evidence simply because it wasn’t integrated with your eDiscovery tool, you could face sanctions or even adverse inferences. Make sure that your paper discovery process is defensible.

There are some advantages to a traditional, paper-based approach to discovery. Analysis of paper documents can make it easier to conceptualize your case and develop strategy because paper documents are sometimes more organized than their electronic counterparts. Better understanding your discoverable evidence and your case early on saves you money down the road.

No Document Left Behind

In order for a paper discovery approach to be useful, scanned or copied documents must be clear and legible, and meet your deadlines. Look for a legal document service that conducts page-by-page quality assurance and provides rush delivery. Your litigation document needs can be quite complicated, and should not be handled by the average local print shop. From Bates stamping to specialized tabs, legal document production requires a litigation support provider who understands court requirements.

Not only do your documents need to be error-free, they also must be secure. Almost all discoverable evidence is confidential in nature, and much of it is single source. If it is lost or destroyed, it can’t be replaced. Some evidence is so sensitive it is only available for processing for a short time. Original and confidential documents must be brought to a secure facility and processed as quickly as possible.

Perhaps you’ve received a disc of evidence prepped for Concordance or Summation, but you prefer to use a paper-based discovery approach. Entrust your blowback to a qualified litigation support team. Your litigation support provider converts Electronically Stored Information (ESI) back into paper by returning single file pages to a multipage format, in the correct order. You don’t waste time printing each page individually and the end result is a reviewable paper document.

Evidence doesn’t always fit conveniently in an 11” by 17” rectangle. Most copiers aren’t large enough to accommodate oversize maps or building plans. When you have large documents, call a legal document service with the equipment necessary to professionally handle your scanning or copying job.

Traditional Discovery Isn’t Just About Scanning

Document scanning, copying and printing are vital components of your litigation preparation, but don’t stop there. While paper discovery has some advantages, it can also be time consuming. From electronic labeling to Optical Character Recognition (OCR), technology helps you tame your paper discovery.

Review is the most expensive aspect of discovery, but there are ways to minimize cost, even when taking a traditional discovery approach. OCR allows scanned images of text to be recognized as text and thereby searchable and editable. Once a document is OCRed, it can be indexed and tagged, saving you money in review time. Bibliographical coding for “to” “from” and “bcc” fields allows a searching capacity identical to an eDiscovery tool. Coding large volumes costs just pennies on the document, and cuts down on the overall size and cost of your discovery project by making searches more efficient.

Scanned documents can be uploaded to any document database, including Concordance. If you choose to use an eDiscovery review solution, your uploaded paper documents can be reviewed with the same software tool as your electronic documents, integrating your paper and electronic evidence for more efficient analysis. Hosted review ensures a safe and defensible storage location for your discoverable data.

WarRoom Document Solutions offers full-service traditional and electronic discovery. Cost varies depending on the size and scope of your project. Our litigation support team works with you to assess your project’s needs. Our 19 years in the legal document industry allows us to give you an accurate cost estimate, which helps prevent discovery sticker shock.

Call us at 1-855-WarRoom today to learn how our Boston or Providence litigation support consultants can help with your paper or electronic discovery needs.