Category Archives: Law Firms

Why Do Attorneys Feel Mired in “Low-Value Work?”

attorneys low value work

Why Do Attorneys Feel Mired in “Low-Value Work?

JD Supra Readers Choice Top Author 2020Written by Jim Gill
Content Chief, Ipro

In a recent Artificial Lawyer article, they featured a survey which found that 67% of in-house attorneys at fast-growth companies felt buried in low-value work. Meanwhile, in another survey of 1,058 senior legal practitioners worldwide (conducted by EY) a third of firms with more than 1,000 employees spend nearly one out of every three hours on ‘low‑value’ tasks.

So what is at the root of being stuck in low-value work?

The surveys point to the familiar bane of legal departments everywhere: manual processes. One might think in this age of being able to manage most of one’s life from a mobile phone, the legal world would have the same things in place, but this just isn’t the case for many law firms and legal departments. eDiscovery managers might be able to see their Amazon packages arrive on their doorstep and literally say, “Thank you,” via a smart doorbell, but at their jobs still face processes and even technology from the previous decade.

A second cause noted is having to use multiple systems. Many legal teams may feel they have their challenges under control, but it may also involve a cobbled-together Frankenstein’s monster of software, services, and manual processes. This isn’t inherently bad if integrations and communications are functioning at peak efficiency. I remember one veteran eDiscovery practitioner comparing this idea to the way audiophiles might compile a stereo system: you want the best of all the components regardless of brand; all-in-one systems are for people who want convenience over quality.

But this can lead to another dilemma when it comes to “low value tasks,” which we highlighted in this week’s eDiscovery Blues: technology training. Sure, your system might work, but it requires an expert to make sure everything stays functioning (just hope that person never wants to take a vacation). That’s why ease-of-use continues to rise to the top on attorneys’ lists.

In the same survey, it noted that when it comes to legal tech, here’s what GCs want:

  • Easy adoption – 80%
  • Integrations – 57%
  • Data Insight – 43%

They want to leverage technology in order to help them do their jobs, but they don’t want the bulk of their time spent learning the technology. It’s easy to fall into the trap of spending more time trying to work less. If technology is too much of a hassle, then the tried-and-true manual processes become more attractive.

For insights into how technologists are working to solve some of these problems, I went to Aaron Swenson, Product Director at Ipro. He raised a few things legal teams should consider in order to avoid being mired down by menial tasks.

  • “They should be asking how to supercharge their teams with technology in ways that are integral to the legal process, while moving them away from having to manage operations (i.e. the ROI spent working toward business objectives vs. on business operations).
  • “They’ll also want to look for technology which makes both internal and external stakeholders/customers happier.”
  • “A goal of ours at Ipro is working toward the idea of zero training time (or at least minimal training time). The technology should be intuitive enough that an experienced practitioner can log in and within a few minutes be doing their work instead of spending it learning software.”
  • “Finally, I think it’s important that legal teams consider how data sizes are growing faster than processing technologies, which means your traditional culling workflow will eventually have to change out of necessity.”

To that last point, the need for technology in the legal world is beyond necessary. It’s time to take the next step toward solutions that work as a single source of the truth when it comes to data, connect all stakeholders both inside and outside the organization, while taking the focus off of time spent learning technology.

All of which allows attorneys to get back to the primary objective of their jobs: practicing law.

 

Register for this two-day virtual event for a chance to take a look at Ipro’s eDiscovery and Information Governance solutions with live Q&A sessions!

virtual road show

 

 

 

Robots Are Your Friends: The Need for Artificial Intelligence in eDiscovery

artificial intelligence eDiscovery

Robots Are Your Friends: The Need for Artificial Intelligence in eDiscovery

JD Supra Readers Choice Top Author 2020Written by Jim Gill
Content Chief, Ipro

I saw this headline on another legal blog a few days ago: AI may be your new Co-Worker! Which of course led to this week’s eDiscovery Blues™ cartoon. For years now, people have been talking about the Rise of the Robot Lawyers in the legal tech industry, but so far, Skynet still hasn’t happened.

In fact, a 2020 survey by Deloitte found that of 1300 CIOs who participated, 60% said Artificial Intelligence (AI) “would assist rather than replace workers.” And there’s no doubt we can use the help.

With the continued growth of data, human efforts alone won’t be enough to manage all of the information created by individuals, businesses, and government agencies. Doug Austin at eDiscoveryToday just published a great piece on Artificial Intelligence (AI) and its effect on eDiscovery.

He states that we can expect “463 exabytes (over 463 million terabytes!) of data to be created each day globally by 2025. Artificial Intelligence (AI) plays a big part of that reason for the mushrooming growth of personal data.  It’s a big mess. Now, with data privacy laws strengthening, since AI helped get us into this mess, can it help get us out?”

In eDiscovery we’re already well aware of the various types of machine learning – clustering and predictive coding are the most prevalent – which legal teams can use to cull large datasets, identify PII, and locate responsive Electronically Stored Information (ESI). But there are still many in-house legal teams and law firms out there who try to apply more manual workflows to these situations without recognizing the value AI can bring.

It’s difficult to put an exact dollar-amount on how much savings a particular technology creates for legal teams, because every matter is unique, with infinite variables involving discovery parameters, data volume, and data types. But Stephen Goldstein, Director of Practice Support at Squire Patton Boggs, speaking at the 2019 Ipro Tech Show, gives a general breakdown of how using predictive coding adds value.

“If you start with 500,000 documents—and they’ve already been de-nisted and threaded, and you’ve gotten down to the core of the data you need to work with—a very good keyword approach would reduce that by about 65%, and you’d still have 175,000 documents. If that is sent to a managed review service, they could plow through them for a charge of around $180,000 for that kind of project, give or take. And that is assuming none of that work comes internal to lawyers who bill $400 an hour but is based on a $40 an hour charge.

“The predictive coding scenario is one that I’m very familiar with, and it’s one that we use. We would probably get an 85% reduction in the data, with fewer documents to review, at a far less cost. And we would have the benefit of that technology being in place to help with QC.”

This benchmark of saving a dollar for every document not sent for outside review – or as I heard one attorney say “a buck a doc” – is important to remember for both corporate in-house legal teams and law firms alike. But to do that with such large datasets, while protecting PII and meeting compliance requirements, you must leverage technology. No need to fear the robot overlords – say hello to your new AI assistant.

 

Learn more about Ipro’s AI & Advanced Analytics!

Ipro for Enterprise from Ipro eDiscovery & InfoGov on Vimeo.

Courtroom Drama: Trial Presentation Best Practices for the Virtual Courtroom

Trial Presentation Virtual Courtroom

Courtroom Drama: Trial Presentation Best Practices for the Virtual Courtroom

JD Supra Readers Choice Top Author 2020Written by Jim Gill
Content Chief, Ipro

As early as May, the ABA Journal was raising the idea of Virtual Trials becoming a part of the “New Normal,” an oft-used phrase to indicate life moving forward in the aftermath of the global COVID-19 pandemic. Now, three months later, virtual hearings and trials are becoming a regular occurrence, and as they do, challenges arise with them.

This week’s eDiscovery Blues cartoon tries to capture a few of those challenges with our usual combination of levity and insight; in particular, the struggle of an attorney being able to gauge the reactions of various parties while presenting an exhibit on screen. Also, it was hard to pass up the chance to show someone taking advantage of professional attire for the camera, while still rocking shorts and fuzzy slippers off screen.

A Few Basics to Consider for Trial Presentation in the Virtual Courtroom

As most of us become accustomed to video conferencing and remote work, a few things start to become apparent as being necessary.

Second Monitor:

When you move from a real life setting to video, your brain might be expecting the outcome of a multi-camera television production, but the reality ends up something like today’s cartoon. But with Zoom calls, you actually do have multiple camera views to work with. This is where having, at minimum, a second monitor in order to optimize presenting as well as organizing participant and speaker views is crucial.

Backgrounds, Dress Codes, Lighting & Audio:

In the recent congressional hearings with the leaders of Google, Facebook, Amazon, and Apple, one thing that came out of that was an analysis of the speakers’ video presences (There was a great write up about it in the NY Times).

Keeping that in mind, here are some things to consider:

  • Attendees should keep their background simple and neat (backgrounds such as a beach landscape or a galaxy are inappropriate for the courtroom).
  • As dress codes are still required, attire needs to be professional. At least follow the “Zoom mullet” approach – business on the top, party on the bottom.
  • Also consider staying away from striped patterns in clothing. In a recent hearing, one participant was constantly closing his eyes, because another participant’s striped blouse was making him slightly nauseous as the pattern was visually vibrating.
  • Good lighting is also very important. Avoid being backlit. Also avoid dark spaces and shadows, which can add an unintentional, somber mood. Ring lights are more popular than ever and for good reason.
  • If you have to choose between good audio or good video, choose good audio. Investing in a quality mic can have a huge impact.

Opportunities & Challenges for Virtual Trials and Hearings

To get more insight into the current situation, I reached out to Alicia Aquino, who is a Trial Presentation Specialist and Litigation Consultant, for her take.

“Online trials are such a controversial topic; however, we see it CAN be done. Whether you’re in-person or online, organization and preparation are the keys to a seamless trial.”

She goes on to add a few of the challenges she’s currently seeing.

“We are finding that access to technology may be an issue for some states and counties.  In an ideal situation, jurors would use dual monitors during trial. As with an in-person trial, the cost of trial equipment is shared between parties, ensuring all jurors have an adequate set up may be the burden of the parties in the future.

“Another challenge with online trials is the internet speed varies from home to home, and jurors and parties are being dropped, causing delay.  A possible solution may be asking jurors to participate at a public setting (i.e. library or government building) which can accommodate for safe social distancing.

“There is a high level of importance for a technical or ‘IT bailiff’ during an online hearing or trial to assist with the coordination of jurors, breakout rooms, and any other tech issues. This person is trained by the court to handle the back end of the platform and logistics.  Some courts face an issue with the budget of having a full-time person assist with technology.

“Court reporters are being tasked with pulling up exhibits in a deposition; however, having an experienced trial tech will help streamline this process. Let the attorney handle the legal arguments while the tech handles the software and evidence.”

3 More Things to Consider for Trial Presentation in the Virtual Courtroom

For further insight on how to better prepare for virtual courtroom presentation, I turned to Janelle Vindiola, Senior Project Manager for the Ipro Trial Services Team.

    1. Practice, Practice, Practice

Take time for incorporating multiple practice sessions within your own legal team, so they can learn what to expect when presenting visual evidence in a remote environment. Practice sessions can help determine internet connectivity between parties (including witnesses) to allow time for upgrading equipment if needed. And, as the court is usually the web host, allow time for a practice session between court and counsel to understand the court’s expectations and requirements, as well as learning the workflows between all parties.

    1. Organization of Exhibits is Key to a Smooth Presentation

If it is not already part of the process, it is suggested for the legal team to share a daily outline of exhibits to be presented. Because the trial tech does not have the convenience of sitting next to counsel, an outline will help the tech easily follow the counsel’s direction of strategy and on queue to present.

Make sure to have an alternate file sharing application to support distribution, since Zoom has a file size limitation of 512MB. Also, courts are known to disable the chat and breakout rooms in Zoom, so the file sharing function may not even be available.

It is crucial to make sure all parties are on the same application platforms to easily follow group communications and data transfers. For trial teams (including trial techs), they will need to confirm alternate communications and have their own private cloud share as well.

    1. Security is Important

Make rooms private where possible and assign someone to vet participants as they enter the discussion. Zoom has a “waiting room” where people must go before being allowed in as means to prevent “Zoom bombing.” Someone will need to monitor that area for attendees if the proceedings are open to the public.

As web hosting may not be 100% secured, review and understand the security policies of your web application and best workflows. Zoom is constantly updating their security features; make sure everyone has the latest build.

Conclusion

As Alicia Aquino puts it, “The COVID-19 pandemic has created an opportunity for the legal industry to embrace technology and move cases through a virtual space. Although online jury trials are not ideal for long term, it is a viable option until we can all safely enter the same courtroom together. Although most courts are already familiar with Zoom for online hearings, there is an opportunity for a platform to be customized specifically to our industry and online courts.”

While there are certainly other challenges that will continue coming up, a little planning, preparation, and communication can go a long way. Things have definitely changed in the past few months, but it’s exciting to see how our industry is leveraging technology to keep the justice system moving forward.

 

See how TrialDirector 360 can help you make an impact during trial!

TrialDirector 360, by Ipro from Ipro eDiscovery & InfoGov on Vimeo.

 

How to Get Flawless Productions Every Time: eDiscovery Production Checklist

eDiscovery Productions Checklist

How to Get Flawless Productions Every Time: eDiscovery Production Checklist

JD Supra Readers Choice Top Author 2020Written by Jim Gill
Content Chief, Ipro

I’ve heard stories like this from attorneys and paralegals more than once: opposing counsel sends a large production of documents in a single PDF. I’ve even heard a version where the production was sent with all of the emails in one PDF, the email attachments in a second PDF, and none of the metadata was sent at all.

Obviously, the solution for managing something like this isn’t a wild conglomeration of monitors stacked up in the attempt to give reviewers a clear view of everything in that never-ending PDF (plus, as this week’s eDiscovery Blues™ comic reminds us, it’s a fire hazard).

So what can you do?

Rule 34 of the Federal Rules of Civil Procedure (FRCP) establishes the guidelines for producing Electronically Stored Information (ESI). It states that productions must be put into “a reasonably usable form,” and that the requesting party:

  • Must describe with reasonable particularity each item or category of items to be inspected;
  • Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
  • May specify the form or forms in which electronically stored information is to be produced.

In other words, “To get what you want, you have to ask for it.”

Use this eDiscovery Production Checklist to ensure productions are better than “reasonably usable” every time.

eDiscovery Production Format Checklist:

(Sources: Ipro Training, Vorys Legal, EDRM)

⇒ Documents should be produced as black & white TIFF images at 300 dpi named with the unique Bates number for that page.

⇒ ESI that cannot render to useable TIFF images (e.g. Spreadsheets, Presentations, Video files, Audio files, etc.) should be produced in native format, named with a unique Bates number and corresponding Bates-numbered TIFF image placeholder.

⇒ Scanned paper documents should be produced with logical unitization (i.e. distinct documents should not be merged into a single record, and single documents should not be split into multiple records).

⇒ Extracted text for all non-redacted electronic files containing searchable text should be produced, and all non-searchable or redacted files should be OCR’d. Native files should contain the text of the document and not the OCR version of the TIFF image placeholder.

⇒ Produced documents, images, and placeholders should include sequential Bates numbering, with prefixes consistent throughout all documents.

⇒ Extracted metadata should be produced, including the following fields:

  • Beginning and Ending Bates Number
  • Beginning and Ending Attachment with Bates Number
  • Page Count
  • Custodian
  • To, From, CC, BCC, Subject
  • Sent and Received Time Stamp
  • Document Folder, File Name, Title, Extension, Author
  • Date/Time Created, Last Modified
  • MD5 Hash
  • Privilege Designation

⇒ For paper documents, produce the following objective coding fields:

  • Beginning Bates number
  • Ending Bates number
  • Beginning attachment Bates number
  • Ending attachment Bates number
  • Source/custodian

⇒ Work with your eDiscovery Technology Vendor to ensure the highest quality productions

 

To learn more about how Ipro can help your organization
read this case study featuring Lightspeed Legal:

“We’ve done hundreds of productions using Ipro & the level of quality to DOJ specifications is unparalleled.”
Rith Kem, Chief Strategy Officer at LightSpeed Legal

 

Workflow Woes: How Paralegals Can Create and Maintain Effective eDiscovery Processes

paralegals eDiscovery Workflows

Workflow Woes: How Paralegals Can Create and Maintain Effective eDiscovery Processes

JD Supra Readers Choice Top Author 2020Written by Jim Gill
Content Chief, Ipro

I have heard stories from paralegals about the challenges they face in trying to establish effective and repeatable workflows at their firms around Electronically Stored Information (ESI) and moving it through the discovery process. Today’s eDiscovery Blues was inspired by one of these stories, where the attorney had always organized documents with binder clips, and when it came to emails, the paralegal had to print those out, so they could be organized as well.

Hopefully by now, in 2020, litigation support teams understand how to leverage technology to save time, ensure accuracy, and pass on savings to their clients, even when working with a combination of ESI and hard copy documents (read this excellent Case Study with Whitney Farrell at PPS&C on how they were able to do exactly that); but it still raises the issue of workflows not being regularly reviewed or even created in the first place. On a recent Ipro webinar about creating workflows, a poll showed that a majority of the audience were working on a case-by-case basis when it came to process.

Brittany Thaler is an expert on eDiscovery workflows: she worked as a paralegal for 13 years, taught in Everest College’s paralegal training program, and is currently on the Ipro training team. “In my former life as a paralegal,” she says, “that was my task: Create a workflow, create a template, create a chart of what litigation looks like from complaint to appeal with all the tools we have available – whether that was with or without discovery tools – and when to begin trial preparation.” She continues:

“The key to making a good workflow isn’t the creation part. It’s how it actually functions in the real world. Be mindful that eDiscovery is changing the way a traditional discovery is being governed. Keep up on those changes and modify your workflows accordingly.”

Workflows shouldn’t be written and then left to gather dust. They need to evolve. That’s why it’s a good best practice to schedule a regular workflow evaluation every 6 to 12 months, to see how your teams are using the workflows and templates you’ve provided. What’s working, what isn’t working? Are they even being used?

From this you can get input from everyone involved – paralegals, litigation support, and attorneys – so that you can build repeatable processes that don’t require your team to reinvent the wheel with each case, but instead ensure accurate and efficient outcomes each time.

For more on how paralegals can create an effective eDiscovery workflow,
Listen to this webinar: Becoming the Indispensable eDiscovery Practitioner

Becoming the Indispensable eDiscovery Practitioner from Ipro Marketing on Vimeo.

 

eDiscovery Software Gives Distributed Legal Teams the Agility & Collaboration They Need

distributed eDiscovery teams

eDiscovery Software Gives Distributed Legal Teams the Agility & Collaboration They Need

JD Supra Readers Choice Top Author 2020Written by Jim Gill
Content Chief, Ipro

For the past several months, the legal community has had to quickly adapt to the reality of working remotely in response to the COVID-19 pandemic. Luckily, we live in a day and age where distributed eDiscovery teams can, for the most part, continue the work at hand, through the use and adoption of technology.

We’ve all become accustomed to communication through video chat platforms, and have even come to rely on these interactions, not only for teams within an organization, but for connection with the larger legal community (shout outs here to Ari Kaplan’s Virtual Lunch Series and David Cowen and his Cowen Café Series for their efforts on this front).

But more than Zoom calls keeping legal departments connected, even when they are truly “in-house” — like our eDiscovery Blues hero, Rick Compliance and his team above – it’s important to remember the eDiscovery software and both it’s security and agility which allows legal teams to not only stay in touch but continue their work.

Aaron Swenson, Product Director at Ipro, shared, “I think today, more than ever, problems that have always existed are magnified with teams becoming distributed practically overnight: the problems of agility, consistency, and collaboration. Before, co-located teams were able to walk over and talk about how to review a document or architect a review. Which seemed great, but a byproduct is that it limits consistency and review power to only the team that’s co-located. Today’s data is created by globally distributed teams, scaling up without boundaries. Approaching this problem, where review is a team sport without physical boundaries, is a perspective I think isn’t just a necessity today, but something that will give those firms embracing it competitive advantages over the long term.”

Which is why it’s so important to leverage eDiscovery technology that gives team members secure remote access for data ingestion and processing, as well as enabling collaboration with internal and external stakeholders.

That way, whether your legal team is in-house, in-office, in-kitchen, in-hotel, or in-the-backyard, the work of eDiscovery continues securely, defensibly, and seamlessly.

Read more of Ipro’s original legal comic “eDiscovery Blues” every Friday!

 

More Cases, Less Effort: How eDiscovery Technology Enables the Small & Mid-Sized Law Firm

eDiscovery Mid-Sized Law Firm

More Cases, Less Effort: How eDiscovery Technology Enables the Small & Mid-Sized Law Firm

Paul, Plevin, Sullivan & Connaughton (PPS&C) LLP was formed in 1998 by four partners who specialize in Labor and Employment litigation.  Now with 29 lawyers devoted to defending and advising employers, Paul Plevin is recognized as one of California’s top management-side labor and employment law firms, representing employers in discrimination, harassment, wrongful termination, trade secret, union-management, and other employment-related matters throughout California and, increasingly, nationwide.

Whitney Farrell is a paralegal at PPS&C, and one of five people who act as a small eDiscovery department within the firm. Along with two members of the IT department, this team knows the benefit of Ipro solutions and work cohesively when starting the process of eDiscovery.

As Whitney puts it, “We are a mid-sized firm, and Ipro is great for our needs, being instrumental in allowing our five paralegals to quickly intake documents on the fly. With the ability to work harmoniously between programs, we utilize Ipro’s eDiscovery tools daily. Then, for the two or three times a year as we prepare for arbitration or trial, we can tie everything together in TrialDirector.”

Leveraging Technology to Streamline the eDiscovery Workflow

Ten years ago, Paul Plevin used Adobe to manage case documents, then moved to an earlier Ipro product, eScanit, along with Concordance, but the firm was growing, and so were document counts. They needed a complete suite of products that would allow them to process, review, and produce documents.

As Whitney stated, “Litigation moves fast, and Ipro continues to keep up with the pace. Now our paralegals are able to streamline the intake process and speed through any processing jobs, allowing our attorneys to review as soon as possible.”

She continues, “Ipro’s processing engine allows us to all work within the controller at one time, which has helped tremendously with workflow. Previously, we had workstations set up in a separate office, so we would have to physically change locations to process any jobs. Now, with a single, centralized controller on all of our computers, we are able to work from our desks. This has greatly improved our workflow, and we all process so much faster now. Attorneys also love Ipro for desktop and responded positively when we transitioned from our previous vendor. Now, the staff are able to perform document review quickly and easily.”

Scaling for a Variety of Cases and Clients

Case size can vary greatly depending on the matter, and the need to scale becomes vital. For example, union arbitration cases are relatively small, often with only a few hundred documents, and come and go quickly. At the same time, staff may get a special request to look at a plaintiff’s emails in their entirety (e.g. 10 years of emails, 150k+ documents), which will exponentially grow the database.

During a complaint involving a hospital – which was originally filed in December of 2013, when they were still using Concordance – PPS&C decided to migrate to Ipro solutions. Moving 10k documents was seamless, and attorneys were able to manage the case quickly, as well as now being able to import documents into TrialDirector for the trial.

“The fact that we were able to easily switch software in the middle of an ongoing case, which we then won, says a lot,” according to Whitney.  “This same case was recently called back on appeal, and when we opened the case in the software, it was all still easily accessible, and we were ready to move forward immediately.”

Not only does Ipro provide the power and scalability to handle large electronic datasets, transferring files sent via email, file transfer, or hard drive, it also has the flexibility to deal with legacy files. In one recent case involving a professor who had been at his university for 25 years, Paul Plevin received boxes of paper documents dropped at their offices. But with Ipro, they were able to scan them directly, utilizing the powerful processing engine, and immediately prepare the attorneys for review.

“A One-Stop-Shop”

When asked what she likes most about Ipro, Whitney responded, “Everything I need is in one place, and all the products work so well together. It breaks everything down into a straightforward, three-step process: processing, administration, and review. Ipro is truly a one-stop-shop. And the post-processing Quality Control (QC) module – which we always use whether the dataset is a single page or a thousand emails – allows us to keep clean, clutter-free, accurate databases, keeping attorneys from wasting time with bad data, and instead, has them quickly moving into review.”

“And besides the software,” Whitney adds, “Ipro’s tech support and training teams are amazing. I’m always able to get the help I need to solve any problem. Ipro makes our process quick and effective, allowing us to save time and take on additional cases without additional effort. It was so easy to make the switch, our attorneys love it, and we haven’t looked back.”

Want to learn more about how Ipro helps small and mid-sized law firms
use technology to compete with the AmLaw 200?

Listen to this webinar with PPS&C’s Whitney Farrell and and Wilson, Turner, Kosmo’s Justin Peña

How 3 Law Firms are Using eDiscovery Technology to Their Advantage

How law firms are using eDiscovery technology

How 3 Law Firms are Using eDiscovery Technology to Their Advantage

It’s been the same story ever since the Cartwright Power Loom or the McCormick Thresher: Technology enables the more efficient execution of the task at hand. eDiscovery is no different. There are numerous solutions out there, each designed to alleviate some particular pain point along the EDRM. But it’s not often you get to hear directly from the people on the front lines on how they’re leveraging technology to more effectively manage their legal teams’ workflow.

Here are 3 eDiscovery practitioners on how Ipro is helping them overcome those challenges.

Bare Bones to Fully Loaded

Stacie Hauza, Deputy Paralegal Administrator/Litigation Support Coordinator at Bredhoff & Kaiser, was working with older eDiscovery software, which was, “very bare bones without any analytics, and there was no way to batch documents, so we couldn’t conduct full-scale reviews.” It was clear that in order to take on the growing complexities with incoming cases, a new solution was needed.

“By adding Ipro for enterprise,” Hauza continues, “we could easily create review passes for review teams and gained the ability to process data in-house, run large-scale reviews utilizing keywords for search term reporting, as well as analytics like near-dupe, clustering, email threading, and TAR, all within a user-friendly interface.”

Not only are they able to review document collections faster, they can also manage incorrect productions from opposing counsel. Hauza recalls one case where an opposing party produced emails in PDF format without extracting any attachments. “With Ipro’s powerful processing engine, I was able to extract the attachments embedded in the PDF, giving us quick access to the full document family which should have been produced. And with Ipro’s OCR functionality in the review module, I was able to fix bad PDF production text on-the-fly after processing. We also had the ability to QC the opposing party’s work after they attempted to re-produce, where it became clear they were just reviewing and stamping in native format using Adobe. If they would have had Ipro for enterprise, their production would have been easy!

Discovery to Trial

Because so few civil cases go to trial, most legal technology focuses on document collection, processing, and review. But even if a case ultimately doesn’t end up in the courtroom, attorneys still have to prepare case strategy and potentially present evidence in mediation or arbitration. Having a solution that can carry things all the way through the process can increase efficiency a great deal.

Carey Granda, Trial & Technology Training Manager at Snell & Wilmer, says “By using Ipro, one of the biggest problems we’ve solved is time spent on task, while efficiency with case creation and productions has greatly improved from our previous document review tool. The combination of industry resources put together in a way that makes sense offers a one-stop tool for users working towards greater efficiency from eDiscovery to trial.”

Victoria Stevens, Senior Paralegal at Wilenchik & Bartness, has had similar success with technology that goes beyond traditional document review. “Collecting documents from their native source significantly reduces (and often eliminates) discovery disputes,” she says, “but Ipro can do so much more than that. She continues: “We use it to tag documents for each witness, which ultimately will be used to prepare for depositions and create affidavits with corroborating evidence for motion practice and trial presentation with Trial Director by Ipro. And the ease of using Ipro to ingest data and then have immediate access to key documents to search, tag, redact, make notes, and ultimately produce for opposing counsel has been such a time-saver — it’s a must-have tool for our attorneys and their litigation practice. Tasks that would take hours (sometimes days) now take a fraction of that time. Our clients save money, and the legal team can focus on more substantive issues and get to the heart of the case.”

A Technology Partnership

It’s no secret that lawyers aren’t technology experts, so it can be frustrating when they’re presented with software that takes a lot of time to learn. That’s why selecting an eDiscovery solution that can get users up and running quickly is important. As the Trial & Technology Training Manager at Snell & Wilmer, Carey Granda “loves hearing from users about Ipro’s intuitive interface, which provides them a DIY approach that wasn’t possible with our former product. This frees me up to handle more consultation with eDiscovery and advanced training guidance instead of teaching people how to use the software.”

And because each case has its own unique challenges, even easy-to-use technology can only take you so far. That’s where having an experienced technology partner can make all the difference.

“The Ipro Support Team is hands down the best in the business,” says Victoria Stevens, Senior Paralegal at Wilenchik & Bartness. “If you have an issue with production, they are relentless in getting it resolved, while teaching you to make your job in-house easier. Even beyond support, Ipro is a cutting-edge company with a team that listens to its clients’ needs and concerns by delivering a cost-effective, accessible approach to eDiscovery. Ipro makes my life easier. Every. Single. Day.”

 

For a deeper look at Ipro for enterprise and how it can help your legal team
Check out our latest product webinar!

Is eDiscovery Existing in a Post-Sanctions World?

eDiscovery Sanctions

Is eDiscovery Existing in a Post-Sanctions World?

The short (and obvious) answer is no. Rule 37(e) isn’t going anywhere. But recent case law indicates a trend where sanctions seem to be harder to come by, which may play into what concerns in-house legal teams as they consider the technologies they may need.

A recent infographic, General Counsel: From Lawyers to Strategic Partners (released by Raconteur with data from Walters Kluwer) showed 66% of corporate legal teams saying “Data Breaches and Protection of corporate data” was a top issue keeping them up at night. Sanctions didn’t even make the list.

Recent case law from 2019 supports the lack of sanction fear, as several cases showed that even when evidence was deleted (sometimes knowingly), courts aren’t doling out sanctions in the same way since the 2015 amendments to the Federal Rules of Civil Procedure (FRCP) went into effect.

As a refresher, Rule 37(e) of the FRCP lays out the threshold for sanctions as follows:

If Electronically Stored Information (ESI) was lost because:

A party didn’t take reasonable steps to preserve it when they should have (i.e. because they knew litigation was imminent)

  • and if the lost ESI can’t be restored or replaced by simply doing discovery again
  • and if there was an intent to deprive the party of information by the loss of the ESI
  • and if the lost ESI actually affects the outcome of the case

…then the court may consider sanctions.

The following examples show that consider is a key word, even when they find the threshold has been met, as in case 3.

United States et al. v. Supervalu, Inc. et al. Nov. 18, 2019 (C.D. Ill. 2019)

Three days after a subpoena, a district pharmacy manager for the defendant sent out an email stating, “Throw away all your competitor’s price matching lists and get rid of all signs that say we match prices.”

The plaintiff alleges there are inconsistencies in both the number and timing of the subsequent litigation holds and accordingly asked the Court for an in-camera review of the three litigation holds which were eventually sent. The plaintiff also believes that the defendant failed to preserve price matching materials responsive to the government subpoena from approximately 80% of their pharmacies nationwide.

But the Court denied sanctions, stating, “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”

Mafille v. Kaiser-Francis Oil Co. May 21, 2019 (N.D. Okla. 2019)

In this case, the plaintiff’s computer was wiped after her termination as part of standard retention policy. When the plaintiff filed for spoliation sanctions, the Court found that the plaintiff’s computer contents were uploaded daily onto the defendant’s LAN server as part of a company policy. So even if her computer were destroyed, the contents could potentially be retrieved if discovery were done on the LAN server. Also, the defendant requested which documents were vital for the plaintiff’s case so they could attempt to retrieve them from the LAN server, but the plaintiff never identified any such items.

Univ. Accounting Serv., LLC v. Schulton. June 7, 2019 (D. Or. 2019)

In this case, the defendant admitted, “I recognize fully that was in violation of the subpoena,” and later said of one particular piece of data, “I deleted the file as fast as I could, because I was petrified at its existence, because it’s exactly the type of damning information that UAS wants to catch me with.”

In US District Judge Michael H. Simon’s Ruling, he states that the Rule 37(e) sanction thresholds “have been satisfied.” Yet, even after meeting the threshold conditions, the judge didn’t order case termination sanctions, but instead chose a permissive inference spoliation instruction against the defendant.

No Sanctions, Why Worry?

Without the specter of sanctions haunting the dreams of in-house legal, does this mean they’ll finally get a good night’s sleep?

Only if they have the processes and technology to manage the exponential growth of data sizes and new file types, which continues to be one of the biggest challenges for corporations, particularly for in-house legal teams who are tasked with mitigating risk involved with enterprise data. To do this, the ability to manage data in a flexible and scalable manner is vital.

Sending a legal hold notice is pretty straightforward. Gaining meaningful and speedy insight into petabytes of data from multiple file types for investigations and subpoenas is much more complex, and forward-looking legal teams are putting their technology to work doing just that.

 

Written by Jim Gill
Content Writer, Ipro

A first step in this process is to use Ipro’s Pre-Litigation Data Checklist as a guide to effectively manage enterprise data in order to avoid potential data pitfalls in the middle of a matter.

Download the Ipro Pre-Litigation Data Inventory Checklist

Ipro Pre-Litigation Data Checklist

Should Mobile Devices be Imaged for eDiscovery? Recent Case Law Provides Insight

Mobile Devices Imaged for eDiscovery

Should Mobile Devices be Imaged for eDiscovery? Recent Case Law Provides Insight

Deciding whether mobile devices should be imaged can be difficult when it comes to eDiscovery. They contain a large variety of file-types and data intermingled with a lot of private information, which may be privileged. Extracting specific information can be difficult and imaging an entire device can be costly. So the question remains: To image or not to image? But not really. That’s why we have case law.

On the surface, it seems that imaging an entire device would fall beyond the usual scope of a matter as it’s defined under FRCP Rule 26. Specific relevant data would be the obvious choice over everything on a single device. Which is exactly how a magistrate judge saw it last year in Henson v. Turn (N.D. Cal. Oct. 22, 2018), when the court denied requests by the defendants to inspect personal devices of the plaintiffs, collecting web browsing history and cookies in the process, on the basis that the data sought was neither relevant nor proportional to the needs of the case.

But in a recent ruling by Special Discovery Master Hon. Rebecca Westerfield (Ret.) in the class action suit In re: Apple Inc. Device Performance Litigation (N.D. Cal. Aug. 22, 2019), the court determined that imaging a sample set of the plaintiffs’ mobile devices was proportional to the needs of the case under Rule 26. So what sets this case apart from Henson v. Turn?

The Case:

In re: Apple concerns the plaintiffs’ claim that Apple used operating system updates to “throttle” and hamper device performance regarding certain of its iPhone 6 devices, allegedly impairing “the integrity, condition, quality, and usefulness of the Devices without Plaintiffs’ knowledge or consent.”

Each side brought forward forensic experts. The plaintiffs’ expert, Mary Frantz, Managing Partner of Enterprise Knowledge Partners, LLC, asserts that “Apple’s internal databases such as collected historical diagnostics, support, and potentially archived cloud of backup files would be a preferred and sufficient method to determine historical performance,” and that, “there is no difference between what would be found on any specific Devices and what could be found via iTunes and iCloud analysis (which Apple could test without a forensic inspection).”

Apple’s expert, Paul D. Martin, PhD, Computer Science—who has over a decade of experience in technology and forensics, including with performance testing and benchmarking of computer and other technological programs—explained the word “performance” can have a broad variety of meanings for a device. “To assess performance conditions,” Dr. Martin asserts that “it is important to perform tests on a device that is configured in a way that matches, as closely as possible, the configuration of the user’s device. Configuration depends both on the hardware and on what is installed on the hardware, including operating system, applications, and data.” He also adds that, “each user controls the state of his or her Device to the extent that it deviates from the basic iOS configuration,” which, along with, variations of installed software, specific device usage patterns, and network or Wi-Fi variations, will impact performance. Which is why he concluded, “the best record of what is installed on a particular Device is the Device itself.”

The Ruling:

Special Discovery Master Westerfield ruled against the plaintiff on the issue of imaging, stating that “other types of discovery would not provide sufficient information on the issue at hand,” and that “the defendant’s privacy concerns could be addressed through a robust protective order containing the following:

  • “The plaintiffs would select a neutral forensic expert to produce a mirror image of the computer’s hard drive in a timely fashion
  • “That expert would execute a confidentiality agreement and also abide by the protective order in place in the action
  • “Only that expert would be authorized to inspect or handle the computer or the mirror image (the plaintiffs and their counsel would not inspect or handle the mirror image
  • “The expert would not examine any non-relevant files or data on the computer, or anything designated as privileged or work-product protected information
  • “That expert would produce a report based upon his or her inspection that describes the files found and any relevant file-sharing information
  • “And that expert would disclose his or her report only to the defendant’s counsel, who could then lodge objections to the report based on privilege.”

SDM Westerfield also cited Herskowitz/Juel v. Apple, Inc. (N.D. Cal. Feb. 12, 2014) in which the court ordered the plaintiffs to deposit computers and devices at issue with a third-party vendor for forensic inspection, because the “data contained on Plaintiffs’ computers and devices is likely to be highly relevant, and admissible evidence under Federal Rule of Civil Procedure 26(b)(1).”

The SDM noted the potential privacy intrusions in Herskowitz/Juel were not as widespread, because only a small number of devices were imaged. In response, the number of devices available for forensic inspection was limited to much less than the 115 devices Apple had requested.

Meet and Confer:

Cooperation is the name of the game when it comes to determining whether mobile devices should be imaged and other complex eDiscovery cases like this one. And the SDM drove that home by stating the importance of both parties continuing to meet and confer, ensuring the order is carried out as determined by the court.

In her ruling, SDM Westerfield writes, “Given the above direction and following Apple’s designation of specific Devices to be examined, the meet and confer process is likely to be more productive than the parties’ past efforts. In this regard, the parties and their experts are in the best position to meet and confer on a proposal that minimizes exposure of content and private information to Apple, the parties’ experts, and Apple’s outside and inside attorneys and provides an appropriate tailored approach to discovery from these Devices.”

Written by Jim Gill
Content Writer, Ipro

 

Ipro FRCP Cheat SheetNeed to brush up on your Federal Rules of Civil Procedure as they apply to eDiscovery?

Download Ipro’s FRCP Cheat Sheet!