DiscoverReady’s New Year’s Resolutions

Happy New Year! As we turn the calendar to 2016 and reflect on what the year ahead might bring, I asked some of my DiscoverReady colleagues to share some of their resolutions for the new year. Here’s what they resolve to accomplish in 2016. . .

Phil Richards, Chief Technology Officer: I resolve to continue improving our e-discovery workflows to make those processes more closely mirror the science of information retrieval. I also want to do more work with clients to help them better understand their data from a “big picture” perspective. Companies are keeping too much information that has little or no business value, which drives up cost and risk—not just when it comes to discovery, but in other important functions, such as compliance and data security.

Amy Hinzman, EVP Review Operations: One of my resolutions is to persuade more clients and counsel to incorporate advanced analytics into their standard document review workflows. But the reality is that many matters still rely on good ol’ fashioned search terms, and so I also resolve to promote the routine use of our Search Term Optimization process to test and verify search terms, and boost the defensibility of search terms. And I resolve to move further towards “paperless” document review training.

Daniel Blair, VP Innovative Strategies: I resolve to educate more organizations on the need to conduct individualized data security risk assessments, and consider in-place protection for sensitive data. I also intend to encourage companies to explore how they can apply traditional e-discovery solutions in new ways, such as compliance initiatives and data privacy programs.

Sean McMechan, VP Project Management: One of my resolutions is to work towards a mobile app that will make all of our various project management reports available on smart phones. I also resolve to further automate our conflict resolution processes, so they are more seamlessly integrated in our workflows. And I will promote more use of our document repository solutions, which allow for easy reuse and comparison of coding calls across multiple matters—so many of our clients with significant litigation portfolios would benefit from this.

And what about my resolutions? I think Calvin put it nicely:

eDiscovery New Years Resolutions
Copyright © by Bill Watterson

Just kidding, folks. I resolve to ramp up my focus on the intersection of litigation and regulatory discovery with data security and privacy. And I also resolve to get even more creative about helping our clients find opportunities to make discovery more efficient, more effective, and less expensive. To accomplish that resolution, I think I need another one—valuable both in and outside of work—“listen more, talk less.”

The DiscoverReady team wishes you all the best in 2016!

Coming in 2016: Tougher New Data Privacy Rules in the European Union

European Commission and European Parliament officials last week agreed on a new set of data protection laws, intended to strengthen individuals’ privacy rights and create a more consistent set of regulations across the twenty-eight European Union member countries.

According to a press release from the European Parliament,

Data Privacy Rules European Union“The new rules will replace the EU’s current data protection laws which date from 1995, when the internet was still in its infancy, and give citizens more control over their own private information in a digitised world of smart phones, social media, internet banking and global transfers. At the same time they aim to ensure clarity and legal certainty for businesses, so as to boost innovation and the further development of the digital single market.”

Highlights of the new rules include provisions addressing:

  • Clear and affirmative consent to the processing of private data. Consumers will have more control over their private information, as consent must be manifested through some action clearly indicating acceptance of data processing. Silence can not constitute consent.
  • Plain language. The new rules prohibit “small print” privacy policies. Information must be given in clear language before data are collected.
  • Parental consent for children on social media below a certain age. Member states will set their own age limits for the consent requirement, but the limit must be between 13 and 16 years.
  • The right to be forgotten. This right, which will now be codified in the regulations, allows individuals to request that their personal information be deleted from the databases of companies holding it, provided there are no legitimate grounds for retaining it.
  • Breach notification. Companies will be required to inform national regulators within three days of any reported data breach.
  • Fines for violations of the regulations. Regulators may issue fines of up to 4% of companies’ total worldwide revenue for misuse of consumers’ online data, including obtaining information without consent.
  • Coordination among Data Protection Authorities. Cooperation among the national DPAs will be significantly strengthened to ensure consistency and oversight.

Importantly for those of us based in the United States, the new rules will extend to any company that has customers in the EU, even if the company is based elsewhere. The EU’s strict stance on privacy has often put their regulators at odds with American companies, which collect and mine data from social media and other web sites for purposes of advertising. But the tough EU privacy laws reflect a fundamental cultural difference between the U.S. and Europe when it comes to individual privacy; Eurpoeans view their right to data privacy as strongly as Americans view their constitutional right to freedom of speech.

The full Parliament will vote on the new regulations in the spring of 2016, and then member states will have two years to implement the provisions.

Magistrate Judge Peck’s Order in Rio Tinto: A Fresh Look at Predictive Coding

Last month, in Rio Tinto PLC v. Vale S.A., No. 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Mar. 3, 2015), Magistrate Judge Peck issued another order regarding the use of predictive coding (a/k/a technology assisted review, or TAR). Since then, more words have been written about his order than are in it. Why the fuss? What’s the significance of the decision? For starters, Judge Peck’s titling of the order “Da Silva Moore Revisited” caused many in the e-discovery community to take notice.

But Rio Tinto is not groundbreaking. Judge Peck approved the parties’ agreed-upon protocols for using predictive coding, which a number of other courts have done since Da Silva Moore—no big deal. More notable is Judge Peck’s statement of several generalized principles about predictive coding. Most experienced e-discovery practitioners already followed these principles, but it’s nevertheless helpful to have an influential federal magistrate judge articulate them. So here’s my recap of the order’s highlights.

It is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.

In the three years following Judge Peck’s decision in Da Silva Moore—the first published federal court order approving the use of predictive coding—case law has developed enough for him to declare that the acceptability of predictive coding is “black letter law.” Pages 2–4 of his order collect the case law to date.

“While I generally believe in cooperation, requesting parties can insure that training and review was done appropriately by other means.”

According to Judge Peck, one still-open issue around predictive coding is “how transparent and cooperative the parties need to be with respect to the seed or training set(s).” To be sure, that issue still generates much discussion. But I do not believe that a court has the authority to require the disclosure of seed sets or other documents that do not fall within the scope of discovery under Rule 26, or to force a certain level of cooperation, so long as the parties otherwise comply with their discovery obligations. That said, a reasonable degree of cooperation can ensure a more efficient and cost-effective discovery process, and parties may want to consider volunteering certain information about their use of predictive coding to move the process along. (Take a look at my last blog post, in which I discuss sharing non-responsive documents in the context of search term optimization and negotiation.)

However, as Judge Peck notes, there are other ways to validate a predictive coding process (or its results) besides disclosure of seed or training set documents. We advocate statistically valid measurements of recall and precision. But regardless of how a litigant chooses to ensure the defensibility of its TAR process, keep in mind the final highlight of Judge Peck’s order. . .

“[I]t is inappropriate to hold TAR to a higher standard than keywords or manual review.”

Bravo, Judge Peck. At DiscoverReady, several of our clients have expressed reluctance to use predictive coding for fear that they would spend more in motion practice—or protracted negotiations with opposing counsel—than they would save by using the tool. Holding predictive coding to a higher standard of defensibility or transparency than other discovery processes will discourage its use. So long as the process is reasonable—the operative standard for discovery disclosures—it should not matter what tools or techniques the party used. And no party should be required to prove up the defensibility of its processes unless and until the other side has shown some deficiency in the production.

Hopefully other courts will adopt Judge Peck’s perspective on the use of TAR and other advanced analytics that improve the efficiency and accuracy of document discovery. As the volumes of information increase, parties soon will have no choice but to deploy these tools—and they should not be forced to meet a heightened standard of defensibility when they do so.

How to Go Where Angels Fear to Tread: Best Practices for Developing and Negotiating Keyword Search Terms

In United States v. O’Keefe, United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), former U.S. Magistrate Judge John Facciola tackled the subject of using keyword search terms to help identify relevant documents for production in discovery. Observing that the proper use of search terms involves “the sciences of computer technology, statistics and linguistics,” the Judge offered the now famous quip that, for lawyers and judges to opine on the effectiveness of a given set of search terms “is truly to go where angels fear to tread.”

Yet litigators go there all the time. (They are a fearless bunch, to be sure.) Here at DiscoverReady, when we consult with clients on projects that involve the use of search terms to cull document collections, we encourage them to follow a few best practices. In a nutshell, the use of search terms should involve: (1) a collaborative, iterative, negotiated approach with the other side, and (2) statistical sampling and measurement to test and validate the results.

We recently gained some additional judicial support for this approach in an order from Magistrate Judge Donna Ryu of the Northern District of California. In In Re: Lithium Ion Batteries Antitrust Litigation, N.D. Cal. (Feb. 24, 2015), the court resolved a dispute between the parties regarding the final details of a mostly-agreed-upon protocol for using search terms. The plaintiffs insisted that, if a quantitative analysis of a challenged search term couldn’t resolve the dispute, defendants must turn over a qualitative sampling of some randomly selected “false positive” (not relevant) documents being returned by the search. Defendants objected to this aspect of the protocol, on the grounds that the federal rules do not entitle plaintiffs to obtain non-responsive, irrelevant documents in discovery.

The judge agreed with plaintiffs, noting that “the best way to refine searches and eliminate unhelpful search terms is to analyze a random sample of documents, including irrelevant ones, to modify the search in an effort to improve precision.” The court went on to explain:

[A] random sample that shows that a search is returning a high proportion of irrelevant documents is a bad search and needs to be modified to improve its precision in identifying relevant documents. The proposed sampling procedure is designed to prevent irrelevant documents from being reviewed or produced in the litigation, and will obviate, or at least clarify, motion practice over the search terms themselves.

But recognizing Defendants’ concern that the sampling protocol would result in the production of irrelevant information to which Plaintiffs have no right, the court ordered protections to guard against the production of any privileged or otherwise sensitive documents in the sample. Indeed, Defendants were given the right to “remove any irrelevant document(s) from the sample for any reason, provided that they replace the document(s) with an equal number of randomly generated document(s)” (emphasis added).

In my view, Lithium Ion underscores the idea that lawyers need to loosen their death grip on the notion that irrelevant documents should never voluntarily be produced in discovery. Sure, the other side is not entitled to see non-responsive documents. But if producing a small sampling of them while engaged in search term optimization will reduce motion practice, streamline the discovery process, and save both sides time and money, why not permit the opposing party to see some? Of course, such a voluntary production needs to have safeguards similar to those from Lithium Ion. And in some matters, there may be valid reasons to resist such a process. But in many instances, a facilitative approach to discovery is the better way.

In Pursuit of Better Privilege Logs – In the Empire State and Beyond

As most litigants are painfully aware, document review – even when managed efficiently and cost-effectively – often is the most expensive component of discovery. And in many cases the “second-pass” review of relevant documents for privilege, and the capture of information about privileged documents for the privilege log, becomes the most costly aspect of document review. But as of September 2, 2014, litigants in New York’s Commercial Division will enjoy the benefit of a new rule that simplifies and streamlines the privilege log requirement.

New Rule 11-b (which resides in section 202.70(g) of the Uniform Rules for the Supreme and County Courts) requires parties to meet at the beginning of the litigation to discuss:

  • The scope of privilege review,
  • What information must be set out in the privilege log (and whether any categories of information may be excluded from the log),
  • Whether a Special Master might assist the parties in resolving complex issues around privilege, and
  • The use of category-based logging rather than document-by-document itemized logging.

Following the approach adopted in the Southern District of New York and several other jurisdictions around the country, the rule expresses a preference for categorized logging. This aspect of the rule will generate the most dramatic benefits for litigants, as the category-based logging greatly reduces the time and cost of preparing privilege logs. A litigant that resists the categorized approach may be required to bear its opponent’s costs to prepare the privilege log, including attorneys’ fees.

But what if you’re not litigating in a jurisdiction that has expressly adopted a rule allowing streamlined, category-based privilege logs? Consider using the “Facciola-Redgrave Framework,” so named for an excellent article by District of Columbia Magistrate Judge John Facciola and Jonathan Redgrave, in which they advocated a category-based method of creating privilege logs. They suggested a framework for handling privilege logs that “should replace, in many, if not the majority of cases, the traditional document-by-document privilege log process.” Their approach encourages parties to take advantage of the flexibility afforded by Rule 26(f), and reach agreement regarding simplified, categorized privilege logs. These agreements become memorialized in a court order pursuant to Rule 16. The framework could also be used in state courts with similarly flexible rules.

To fully realize the benefits of category-based privilege logs, litigants must finalize the details of the logging requirements before beginning document review. If the document review team understands the logging protocol from the outset, all of its work with privileged documents, including the specific coding of information about each privileged document, can be leveraged for the automatic generation of a draft privilege log. The ability to at least partially automate the process yields substantial savings of time and cost. And in our view, a more efficient and less expensive privilege log definitely qualifies as a better privilege log.