Professional Documents
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#%&#(SE
To provide a framework that will empower legal advisors to make ethically sound decisions related to the handling and processing of ESI Ethical focus is on the following responsi!ilities " Competence " Diligence " #romptness " Accuracy " Defensi!ility " E$peditiousness " Efficient %se of &esources Scope 'e will also address topics that should !e considered when making decisions at various stages of EDD
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A)E*DA
'ho is defining the landscape+ A #aradigm Shift , Em!racing the (penness -urisdictional Differences , A .uick e$ample ED&/ , 'e0ll look at the stages 1 point out choices that represent potential ethical danger 2ones
Identification 3 Lit Hold 1 IT #olicies , Accurate4 Defensi!le4 #rompt+ #roduction &e.uests , Crafting 1 &esponding 3 %niverse of Data , How defensi!le is your data manifest+ #re3#rocessing , Is your culling methodology accurate 1 defensi!le+
5ulk Tagging , Com!ining Tools with Competence 1 Diligence De3duping , &efresher6 Is )lo!al 7glo!al8+6 Is re3duping defensi!le+ Clustering 1 Searching , Competence 1 Accuracy
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#&E9ACE I am a Consultant6 not a litigator E3Discovery in the courtroom represents 7:a rapidly evolving situation 8 I am not here to lay down 5right Line rules I0m here to talk a!out general principles
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Ethi cal (!li gati on vs #rof essi ona l &es pon si!il ity+
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A #A&ADI)/ SHI9T
Litigators are not trained to share information They are trained to give the a!solute minimum they possi!ly can In EDD4 the courts are pushing a different paradigm regarding sharing Dand not resorting to the -udge to make a rulingE Sedona talks a!out !eing as open as you can possi!ly !e Doing the opposite can get to !e very e$pensive In any case4 once the -udge finds out you0ve !een hiding4 they are going to force you to open up
E m !r ac in g th e op en ne ss :
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-%&ISDICTI(*AL DI99E&E*CES
-urisdictional differences play a large part The rapid pace of rulings and lack of accepted guidelines has resulted in e$treme differences in the rules among Curisdictions 7 decisions in adCacent Curisdictions are diametrically opposed to one another 8 E$ample; In the case of inadvertently produced privilege documents6 does the producing party have a duty to report+ DC and /D are neigh!ors !ut the rules in each Curisdiction are e$actly opposite of one another (ne says that attorneys have a 7professional responsi!ility 1 duty to report8 inadvertently produced privilege documents6 the other says it is not re.uired
C o m p et e nt + Di li g e nt +
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How well do you understand the process4 methodology and technological tools at your disposal+ Bou have the professional responsi!ility to not only understand the capa!ilities6 !ut also to have the re.uisite e$pertise and wherewithal to efficiently4 economically4 accurately and defensi!ly leverage the technology and resources availa!le to you Is your outside counsel also following this mindset+ 'here do differences in methodology and e$pertise e$ist !etween your team and outside counsel+ How would you answer this .uestion if posed in Court+
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Chain of Custody +
Domain 9iltering +
5ulk Tagging +
The goal of EDRM is to develop guidelines and standards for e-discovery consumers and providers.
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Self3Collection , Bour thoughts+ %nder what circumstances should you allow custodians or internal staff to identify or self collect relevant data+
-udge Scheindlin recently categori2ed the practice of self3collection as an act of gross negligence (ther Cudges have made similar assessments
Dili gen t+ Def ens i!le + Acc ura te+ Co mp ete nt+
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Hu#or $rea%& In the interest o' openness an" sharing( wel)o#e to #y worl"*
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D ef en si !l e+ Ac cu ra te + Ef fic ie nt +
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LITI)ATI(* H(LD;
Identification 1 #reservation
D ef en si !l e+ Ac cu ra te + Ef fic ie nt +
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LITI)ATI(* H(LD;
D ef e ns i! le + #r o m pt +
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Do you have e$isting policies that define how custodians are to manage their data and data3containing devices+ Email+
Are users responsi!le for managing the si2e of their email store files+ Are they allowed to use offline storage files+ Lotus *otes; Do users detach large attachments from email in order to manage the si2e of their mail!o$+ How is this resolvedHidentified when the data is collected+ Are users allowed to access non3work email accounts Dgmail4 Bahoo4 etc E from work computers+ Distri!ution Lists 3 Custodians may receive email that is sent to distri!ution lists DDLsE of which they are a mem!er Searches for Cust the custodian0s email address may result in these messages !eing e$cluded from the collection
Is this mem!ership tracked+ Does it include the dates they were addedHremoved from the DL+
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#&(D%CTI(* &EL%ESTS
&esponding to #roduction &e.uests
Courts e$pect attorneys to !e as open and a generous with information as they can !e EDD is a conundrum for many litigators !ecause it is M?= degrees from what a Cudge would e$pect you to do with paper They 'A*T you to volunteer information and they can get very angry with you if you don0t
A cc ur at e+ C o m p et e nt +
5e careful to !e open and 7avoid !eing under inclusive in what you are producing Don0t Ogo lawyer0 on deciding how inclusive to !e 8 @ DThis is even harder E Bou have to really know what you have and what you0ve given over
E$ample; In a recent case with one of my clients4 opposing counsel opposed a motion for summary Cudgment regarding signed releases The argument was that !ecause they didn0t have any claims at the time of the release4 they left the space !lank They didnPt fill it out and claimed that they couldn0t have detailed any claims !ecause 2ero claims e$isted at the time the release was signed In the privilege log however4 there were nearly >== docs pertaining to the large list of claims and damage calculations that predated the date they signed the release
De fen si! le+ Co mp ete nt+ Ac cur ate + Dili
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Effi cie nt res our ce usa ge+ #ro mp t+ Dili gen t+ Co mp ete nt+
C%LLI*) /ETH(DS
De3mystifying 7De3*IST3ing8
The *S&L List Dalso called the *IST listE list can !e used to eliminate known system files !ased on their digital signature The list is a collection of digital signatures of known4 tracea!le software applications It is updated regularly
De fe nsi !l e+ Ac cu rat e+ Co m pe te nt +
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Culling !y Domain In pre3processing4 it is decided to narrow the scope of your data through the use of email domain culling This allows you to eliminate email from non3work sources4 solicitationHspam4 weekly industry newsletters4 fantasy sports newsletters4 etc
'hat is the o!ligation to share the list of e$cluded domains with opposing counsel+ A pornography we!site is among the e$cluded domains The email was identified among the data for a prominent employee 'hat is the responsi!ility to those you represent+
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D ef e ns i! le + Di li g e nt +
#&E3C%LLI*)H&EGIE' , 5%LF Avoid falling victim to the risks associated with under3 TA))I*)
informed or improper use of 7!ulk coding8 options of pre3 processing software applications Domain filtering is a useful tool in categori2ing and prioriti2ing documents !ut it does not negate the responsi!ility to review the documents Clustering or near dupe applications with categori2ations stating 7you don0t have to review those records 8 or similar Conte$t is relevant Since conte$t can differ for even Hash level duplicates4 you should not !lindly code e$act duplicates identically The conte$t may alter that categori2ation4 so it is critical to at least review the differences related to the conte$t of duplicates Avoid the temptation of the Easy 5utton
De fe nsi !l e+ Ac cu rat e+ Co m pe te nt +
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Def ens i!le + Acc ura te+ Co mp ete nt+ Dili gen t+
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Hashes are deterministic , Hash algorithms will generate the same hash value for any static file every single time Hash values appear in a normali2ed4 he$adecimal format
E$amples of >@ digit /DQ hash values; The .uick !rown fo$ Cumps over the la2y dog
Hash Galue; TeM=SdTd>S@!!U?@U!d?Md>Q<@a<MTdU The .uick !rown fo$ Cumps over the la2y dog Hash Galue; e<dT=Tc@T=d=f!Mca=U?ffaddf@@c!d=
De fe nsi !l e+ Ac cu rat e+ Co m pe te nt +
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Effic ient + #ro mpt + Def ensi !le+ Acc urat e+ Co mpe tent +
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De3duplication , #roduction Assume that you glo!ally de3dupe in order to reduce review costs 'hen it comes time to produce your documents4 do you produce the glo!ally de3 duplicated set4 a vertically de3duplicated set4 or all of the data Dno de3duplicationE+
A recent ruling resulted in sanctions when a party produced a glo!ally de3duplicated set of documents The issue related to the order in which certain key custodians0 data was compared to that of other custodians
Ef fic ie nt + D ef en si !l e+ Ac cu ra te +
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Clustering is related to searching /any clustering technologies are language independent Some technologies allow for user directedJ clustering
J'e0ll cover this further when we discuss searching
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Searching 3 Feyword Search &e.uest &eceived A firm su!mitted a search re.uest that included the names of several large organi2ations Among the re.uested terms was 7Ernest 1 Boung8 5ased on the written discovery re.uest4 which mentions Ernst 1 Boung4 it is o!vious that the intent was to search for 7Ernst 1 Boung8 A mem!er of your team notes this spelling error Do you run the search as instructed or do you modify the spelling+ 'hat if the error is discovered after processing many of the documents4 or mid3way through your review+
De fe ns i!l e+ Ac cu ra te + Co m pe te nt +
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ey !ord "earching # $ %uic& Review 'oncept "earching "earchable vs. (on-"earchable Documents TRE' ) EDRM
/any vendors offer consulting services to aid in improving the efficiency of key word searching
Ac cu ra te + De fe ns i!l e+ Co m pe te nt +
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ey !ord "earching 'oncept "earching "earchable vs. (on-"earchable Documents TRE' ) EDRM
Two primary approaches are generally used
)uided and %nguided Ta$onomies DclassificationsE 5oth create 7clusters8 of similar or related documents
)uided Ta$onomies utili2e user or e$pert created 7guides8 to help categori2e documents that share similar concepts
Industry or case specific terms can !e clarified to ensure that certain words are properly interpreted !ased upon conte$t
E g The term 7option8 could !e categori2ed with 7stocks84 7compensation84 7price84 7market8 and similar words to help distinguish it from 7option8 used in reference to a choice
Ac cu ra te + De fe ns i!l e+ Co m pe te nt +
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ey !ord "earching 'oncept "earching - continued "earchable vs. (on-"earchable Documents TRE' ) EDRM
%nguided Ta$onomies 3 Latent Semantic Analysis DLSAE Analy2es the co3occurrences of words in the collection
Analysis resolves conditions wherein words have multiple meanings or where multiple words share the same meaning Considers relationships !etween words
The concept 7!icycle8 would relate to the concept 7vehicle8 The concept 7chain8 would relate to the concept 7!icycle8 $ut only where !icycle3related documents were concerned Documents mentioning 7restaurant chain8 would not !e related4 despite the presence of the term 7chain8 %ser could search for 7!icycle8 and get documents discussing 7helmets84 7pedals84 7tri3athalon8 or 7Schwinn8 that D( *(T actually contain the word 7!icycle8
Ac cu ra te + De fe ns i!l e+ Co m pe te nt +
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ey !ord "earching 'oncept "earching - continued "earchable vs. (on-"earchable Documents TRE' ) EDRM
A )uided Approach %sing the 5ayesian Algorithm
5uilt upon the theorem authored !y Thomas 5ayes DMS=@3MSUME 5ayesian inde$es can !e used to identify documents that are conceptually similar to a selected sample set of documents The result is a category of similar documents that can then !e used to identify any additional documents that are likely of the same nature Email spam filters use 5ayesian mathematics to calculate the pro!a!ility that an email is legitimate !ased on the fre.uency of specific keywords found within them In Electronic Discovery applications4 this technology can !e used to create 7hot8 su!sets of similar documents as a category to find 7like8 documents !ased on the su!set
Ac cu ra te + De fe ns i!l e+ Co m pe te nt +
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ey !ord "earching 'oncept "earching "earchable vs. (on-"earchable Documents TRE' ) EDRM
Searcha!le Documents
All content within the file is availa!le to !e inde$ed 1 searched 7Speaking8 documents and te$t !ased files
Dili ge nt+ Acc ura te+ Def ens i!le + Co mp ete nt+
*on3Searcha!le Documents
*on3speaking documents such as !inary files Encrypted or password protected documents Corrupt documents Image documents without any em!edded te$t
These may !e made searcha!le if (C& is generated for them
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ey !ord "earching 'oncept "earching "earchable vs. (on-"earchable Documents TRE' ) EDRM
T&ECM
7The Te$t &Etrieval Conference DT&ECE4 co3sponsored !y the *ational Institute of Standards and Technology D*ISTE and % S Department of Defense4 was started in MTT@ as part of the TI#STE& Te$t program Its purpose was to support research within the information retrieval community !y providing the infrastructure necessary for large3scale evaluation of te$t retrieval methodologies 8 7/ost of today0s commercial search engines include technology first developed in T&EC 8
ED&/@
The ED&/ Search #roCect is intended to create a normali2ed search schema that will allow searches to !e written in an application independent manner It includes a !road array of search techni.ues6 from 5oolean to Concept H Clustering !ased methodologies The goal of ED&/ is to develop guidelines and standards for e3discovery consumers and providers
Te)hnology an" the lan"s)ape are both e.er+e.ol.ing Staying abreast o' both is your pro'essional responsibility
M http;HH trec nist gov @ www edrm net
D ef e ns i! le + C o m p et e nt +
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Searching 3 Stemming Current tools allow stemmed searches to eliminate unwanted word variations 9or e$ample4 a search for the word 7option8 in a stemmed search would return options4 optional4 optionor4 optionee4 optionally4 optioned4 etc In a !ack3dating case4 would you allow opposing counsel to selectively eliminate variations that appear to !e unrelated to stock options+ If yes4 would you e$pect opposing counsel to !e willing to provide a list of the e$cluded variations of the search term+
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ETHICAL EDD
Topi)al Spea%er& -oseph Derting4 C9#4 CCST4 CC9A4 iCA4 CCA
-oseph Derting is a pioneer in the development and implementation of electronic discovery application processes As Director of Consulting and Hosting Services at ADS4 he works with clients from the onset of litigation through production -oseph0s industry contri!utions include; management of the conceptuali2ation and development of EDD software applications6 strategic consulting and providing technology3!ased evidentiary counsel6 ? years of managing electronic discovery processing6 creation and implementation of test procedures for the five generations of EDD software6 conceptuali2ation and development of electronic discovery software training materials 1 methodology6 and conducting on3site certification training programs in the use EDD software in nearly S= litigation support offices around the % S 4 % F and Canada -oseph has taught electronic discovery theory to over @== professionals in Europe and *orth America4 with more than ?=V training and speaking engagements to his record He has !een a featured speaker at numerous seminars and educational events He is certified !y (regon State %niversity in Computer 9orensics and trained in the use and presentation of electronic evidence in Court6 often appearing in % S District Court on !ehalf of clients K /e)ent Spea%ing Engage#ents 0sa#ple listing1 @==S 9&C# &ule Changes 1 Effects on E3Discovery 3 Gendor &esponsi!ilities 3 #ortland4 (& @==? %nderstanding /etadata CLE , Seattle4 'A @==T Data Culling /ethodologies CLE , 'ashington4 DC @==T EDD to English; A #rimer on 5asic Terminology4 /ethodology 1 #ractice CLE , #ortland4 (& @=M= 5ridging the )ap; Intermediate EDD /ethodology 1 #ractice CLE , Seattle4 'A @=M= Ethical EDD CLE 3 ACCA Southern California Chapter 2010Certi'i)ations Certified discover3e (perator4 discover3e Trainer Certified 9orensic #rofessional , (regon State %niversity Concordance Certified Software Trainer 1 9BI Administrator Certified iConect AdministratorK Certified Clearwell Administrator E"u)ation 5 A 5usiness Administration 3 %niversity of 'ashington4 MT?? Asso)iations ED&/ , Co3Lead , #ro!a!ilistic Hash #roCect4 @==T3@=M=
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