• August 29, 2014

35-Desktop-Hard-DriveThe extraordinary cost and burden of discovery of ESI in U.S. litigation has been widely recognized and decried for the past 15 years or more. This is changing.

And about a year ago, I did a post on how trial lawyers’ “idiots’ bargain” created an equilibrium, a balance, or a moratorium of sorts, in which lawyers on both sides of the table maneuver or negotiate around electronic discovery obligations so both sides could avoid the potentially huge expense to their clients and also exposing lawyers’ and law firms’ technological incompetence or sloppiness. But the days of truce are numbered if not over. Electronic discovery costs are coming down and lawyers’ knowledge of e-discovery tools (and using them more carefully) goes up.

But note the lengthy and insightful comment of Chris Chalstrom, CEO and President of Shepherd Data, below. With cost savings and cut corners like strictly defined key word searches, you may be “penny-wise and pound foolish.”

Check out the recent e-discovery protocol that U.S. Magistrate Judge Jeffrey J. Keyes (D. Minn.) put in place in the St. Jude v. Grubiak case (covered previously here).

You will note that the time-lines set out by the protocol are quite short (three days, one week). There is only so much work that can be billed in such time.

And you will also note that the proposed ESI search terms are quite limited and narrow. Time will tell how much data will be collected in these searches but I would speculate that the findings will not be overwhelmingly voluminous or costly to collect or review.

I am bullish about e-discovery over time. It is one aspect of our civil litigation system that will get better and cheaper over time for lawyers and for their clients and it will lower the cost of getting to the truth, which is what the system aims to do, of course.

However, heed the wisdom of Chris Chalstrom, President and CEO of Shepherd Data Services:

We’re starting to see more of these agreed upon protocols between parties.  It is both good and bad.

It’s good if this is the only way the parties can agree to move forward in the case.  The parties have agreed to have a neutral third-party forensic examiner perform the agreed upon search terms within a pre-defined timeframe.  The forensic examiner acts only as an extension of the parties’ direction.

It’s bad because it really handicaps the forensic examination.  In this case, there are specific terms and numbers the forensic examiner must apply.  According to the protocol there is some room for expanding the search but not much.  What does the forensic examiner do if during the course of his/her examination s/he finds the person named “Woodstock” uses the nickname of “Weed”?  Does the examiner have the obligation to bring that to the attention of the parties?  Or, does s/he keep silent?

Another issue I see with the protocol is the parties think in terms of documents.  Generally, in forensic investigations, the examiner finds the most valuable information in the unallocated space of the device.  Unallocated space contains deleted data.  Often, in this space, the data is no longer has clear definition as a document.  It is just scraps of data.  How are the parties dealing with this type of information?  I do not see any accommodation for this type of data search and production.

For a truly effective forensic examination, the examiner needs to have free will.  This protocol handicaps the examiner which could ultimately lead to missing key evidence.  In this case, an alternative could be for the examiner to start with those key phrase.  After conducting those searches, the examiner should have the option to conduct additional reasonable searches based upon what s/he has discovered.  Also, the parties should give the examiner the opportunity to report on the unallocated space.  This report could account for those scraps of evidence and the examiner would be allowed to give his/her professional opinion of the origin of that data.  The protocol is a good start.  It just needs to go just a bit further and allow the examiner to perform without handcuffs.

“Sometimes a protocol makes me feel like a robot,” Chalstrom also commented. She makes an excellent point that a data-search strictly limited to “key words” removes any human intelligence in the data-search by the forensic examiner. The investigating party is putting all its faith in “key words.” Cutting out the “expense” of thoughtful investigation poses a true risk of blowing right past key evidence.

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