Courtroom Drama: Trial Presentation Best Practices for the Virtual Courtroom

Trial Presentation Virtual Courtroom

Courtroom Drama: Trial Presentation Best Practices for the Virtual Courtroom

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.

 

3 Ways Corporate Legal Teams Can Gain Operational Efficiencies

Corporate Legal Operational Efficiencies

3 Ways Corporate Legal Teams Can Gain Operational Efficiencies

More and more, corporate legal teams are looking for efficiencies across all departments, both inside the organization and with external partners. In order to gain efficiencies, you must first benchmark performance and measure KPIs. A first step then for in-house legal teams is to set objectives for the department that align with the overall business goals of the company, then figure out if the data exists to begin the process of tracking performance.

That’s why Ipro created a series of resources around the Top 3 Challenges for Corporate Legal Teams.

In this installment you’ll gain insight into where Corporate Legal Departments Can Look for Operational Efficiencies: 

  • Relationships with Internal Stakeholders
  • Bridging the Communication Gap
  • Relationships with Outside Counsel & 3rd Party Vendors

Download the overview today! And stay tuned for the Final installment next week!

Top 3 Challenges for Corporate Legal Teams

 

Eight is Enough! Eight Considerations for Defensible Deletion, Part Two

defensible deletion

Eight is Enough! Eight Considerations for Defensible Deletion, Part Two
Written by Doug Austin, Editor of eDiscovery Today

Last week, I covered the first four considerations to minimize your organization’s Redundant, Obsolete and Trivial (R.O.T.) data effectively, while tying them to the classic 70’s TV Series Eight is Enough. This week, I’ll cover the remaining four considerations while tying into quotes from great American philosophers (if you’re a movie fan, that is).

Get An Assist From Technology

With more data being managed by organizations, it’s more difficult than ever to manage it through just through human tracking and best practices.  Historically, in discovery, we’ve seen data move to the technology and the tendency has been to collect broadly, then cull downstream to identify potentially responsive ESI for review and possible production.  But, with so much data these days, we’re starting to see the technology move more to the data to help organizations better understand what they have up front and only collect what’s potentially responsive.

Index-in place technologies are becoming more prevalent to not only enable organizations to perform In-Place Preservation, but also to help organizations identify R.O.T. outside of a preservation obligation to enable them to get rid of that R.O.T. before litigation happens, potentially saving them as much as $1.5 to $3 million per terabyte eliminated from potential discovery.

Keep Your Records Retention Policy Current

Your organization surely has a records retention policy by now, right?  If you said “yes”, good (if you said “no”, re-read the first four considerations from last week).  Regardless, having a policy and keeping it current are two different things.  Just two years ago, neither GDPR nor CCPA was in effect, so the data privacy landscape was considerably different than it is today.  The collaboration application Slack has ten times the number of users it had just a few years ago.  The data within your organization and your obligations for maintaining and protecting that data are regularly changing, so it’s important to keep your records retention policy up to date with those changes.  As the great American philosopher Ferris Bueller once said “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.”  This is true for data considerations within an organization as well.

Extend Defensible Deletion to BYOD Devices

As I wrote a few weeks ago, it’s important to have a strong Bring Your Own Device (BYOD) policy in your organization to minimize security risks or you could be facing potential spoliation sanctions.  And, those BYOD devices have potential R.O.T. in them too.  But, does your organization establish expectations for its employees with regard to defensible deletion of R.O.T. in BYOD devices?  And, before you ask “how much ESI could there be within a mobile device?”, it’s worth noting that the default retention period for texts in iPhones is forever.  So, it’s important to tie your BYOD policy to your records retention policy, establish expectation for employees in complying with both policies and follow-up to enforce adherence to both policies.  Otherwise, you could have a lot more data to potentially review during discovery.  Setting an expectation with employees up front that their BYOD device is subject to retention policies with regard to company data is more important than ever.

Document Thoroughly

To paraphrase the great American philosopher Tyler Durden, the first rule of defensible deletion is: Document Thoroughly. The second rule of defensible deletion is: Document Thoroughly.  Whatever your practices are, document them as thoroughly as possible. The more you do so, the less likely you’ll be on the hook for potential significant sanctions due to spoliation of ESI.  There is no way to totally eliminate the potential of spoliation of ESI when a duty to preserve hits your organization, but a thorough approach to documentation and an earnest effort to know when to hold ‘em and when to release ‘em will show the courts your organization is doing its best to meet its preservation obligations, while enabling it to minimize your organization’s R.O.T. to minimize exposure from a compliance perspective and reduce costs during discovery.

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, feel free to follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

Stacks on Stacks: Survey Shows Increased FOIA Requests Still a Challenge

FOIA Requests Survey

Stacks on Stacks: Survey Shows Increased FOIA Requests Still a Challenge

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

 

Today’s eDiscovery Blues cartoon gives a nod to our colleagues working in government agencies processing FOIA requests. By law, all federal agencies are required to respond to a FOIA request within 20 business days, unless there are “unusual circumstances.”

The number of requests per year has continued to rise over the past decade, with 858,952 requests in FY 2019 alone, according to the DOJ. Along with this rise in requests, comes an increase in data to search through. So not only are more requests coming in, there is a larger data landscape to sift through in order to find relevant documents.

FOIA Requests Survey

In a recent Ipro webinar series, we discussed various challenges with FOIA officers and analysts in order to take a look at what’s going on currently in the field. In our discussion on 7/29, we surveyed the audience and each question’s leading response points back either to the volume of requests or the need to narrow the scope of the request.

Biggest FOIA Challenges Within Agency

  • Volume of Requests: 40%
  • Responsiveness from Other Depts: 33%
  • Working Remote: 18%
  • Complex Redactions: 10%

Biggest Challenges Working with Requestors

  • Getting Requestor to Reduce Scope: 51%
  • Timely Response from IT: 34%
  • Clarifying Request from IT: 12%
  • We Manage Email Requests Just Fine: 2%

Biggest Challenges with FOIA Requests for Emails

  • Getting Requestors to Narrow Score: 39%
  • Expert vs. Novice: 33%
  • Requests for Expedited Treatment 25%
  • Requestor Appeals: 3%

 

Leveraging Technology for FOIA / PRR

Many agencies are still trying to meet these challenges with manual processes and off-the-shelf software combinations (such as Outlook, Excel, and Adobe). As data volumes and request volumes continue to grow, this becomes a daunting task at best, even if there were an increase in personnel.

This is where technology specifically designed to manage large datasets and quickly find responsive documents can make life much easier for FOIA officers.

Here are a few tools to consider:

De-Dupe / Near-Dupe

These are exactly what they sound like:

De-Duplication (or De-Dupe) identifies and removes duplicate documents on ingestion, greatly cutting down on the document count which must be searched.

A tool which finds Near-Duplicates (or Near-Dupe) uses analytics to find nearly identical documents. This tool can even identify the percentage of duplicate content and conduct side-by-side comparisons of documents, highlighting differences.

Email Threading

This is a tool that identifies email relationships (threads, people involved in a conversation, attachments, and duplicate emails) and groups them together as one coherent conversation. It also gives you the ability to locate the terminal email in a thread, which contains all previous emails leading to it. By looking at the terminal thread, it cuts down searching through multiple emails containing the same content.

Concept Clustering

Concept Clustering is true to its name. It visually groups documents into keyword groups or clusters, allowing you to quickly get an understanding of the data landscape, with the ability to make connections nearly impossible with linear review.

Connecting Directly to Data Sources

By connecting directly to data sources (such as an organization’s email servers, sharepoints, and messaging apps) it allows the FOIA officer direct access to data, rather than having to contact those departments or their IT and request data.

Redaction Tools

Rather than use off-the-shelf tools like Adobe to manually create redactions, the same tools used to search and cull documents, can also create redactions that remove the text under the redaction, run validations to make sure the redactions are burned in and the text is correct, and create layered redactions, so multiple production sets can be sent to multiple parties. They can even identify documents which may need another layer of review before they’re produced, similar to an email platform asking if you want to send without a subject line or if you’ve forgotten an attachment.

Conclusion

Even with the growing number of FOIA requests and the challenges highlighted in this survey, Government Agencies can easily meet the 20-day deadline by leveraging technology and taking advantage of some of the tools listed above, giving officers an edge when it comes to working through those towering stacks (whether they are paper or digital) coming into their inboxes.

In case you missed our 3-Part FOIA Webinar Series featuring expert practitioners discussing best practices, listen on-demand here!

 

3 Ways Corporate Legal Teams Can Control Outside Legal Spend

corporate outside legal spend

3 Ways Corporate Legal Teams Can Control Outside Legal Spend

According to a recent study by Complex Discovery, 88% of eDiscovery costs happen during the processing and review stages. Traditionally, these tasks are carried out by Alternative Legal Service Providers (ALSP) and outside law firms, giving in-house corporate teams little control over these costs.

However, forward-thinking legal teams are leveraging technology to reduce these outside costs, while gaining control over their data and workflow.

That’s why Ipro created a series of resources around the Top 3 Challenges for Corporate Legal Teams.

In this installment you’ll get a look into how Corporate Legal Teams Can Control Outside Legal Spend by: 

  • Bringing Processing In-House
  • Pre-Review Data Culling
  • Leveraging Technology for Internal Investigations

Download the overview today! And stay tuned for the third installment next week!

Top 3 Challenges for Corporate Legal Teams

 

Eight is Enough! Eight Considerations for Defensible Deletion, Part One

defensible deletion considerations

Eight is Enough!  Eight Considerations for Defensible Deletion, Part One
Written by Doug Austin, Editor of eDiscovery Today

Does anybody remember the late 70’s TV Series Eight is Enough about the Bradford family with eight children, starring Dick Van Patten? Or am I showing my age?

Regardless, “eight is enough” is a great phrase to sum up this week’s post.  As Jim Gill noted last week, a significant percentage of an organizations’ data is Redundant, Obsolete and Trivial (R.O.T.).  Defensible deletion of R.O.T. within your organization is key to minimizing exposure from a compliance perspective and reducing costs during discovery.  Over this post and the next one, I’ll discuss eight considerations for you to be prepared to minimize your organization’s R.O.T. effectively. Today, we’ll cover the first four considerations for defensible deletion.

Understand Why Its Important

To understand why getting rid of R.O.T. is so important, here are a few statistics for you to consider:

  • Every 2 days we create as much information as we did from the beginning of time until 2003. (TechCrunch);
  • If you burned all of the data created in just one day onto DVDs, you could stack them on top of each other and reach the moon – twice (SmartData Collective);
  • 90 percent of records, once filed, are never referred to again, and 95 percent of references are to records less than 3 years old (ARMA New Jersey);
  • 69 percent of organizational data has no legal or business value (Compliance, Governance and Oversight Council (CGOC) 2012 Survey);
  • Estimates show eDiscovery costs to be between $1.5 to $3 million per terabyte of stored information (InfoGov Basics).

Most of these statistics are old, by the way.  Do you think the problem has gotten better over the years?  I don’t.

Address the Changing Data Privacy Landscape

Another important reason for why getting rid of R.O.T. is so important are the increasing requirements placed upon essentially every organization due to strengthening privacy laws.  The European Economic Area (EEA), which is (by the way) larger than the European Union, implemented the General Data Protection Regulation (GDPR) in 2018 and California implemented the California Consumer Privacy Act (CCPA) this year.  Many other states and companies are implementing data privacy laws as well, which may or may not be similar to GDPR or CCPA.  And, you have regular challenges to implemented data privacy mechanisms, such as the Schrems II case that just resulted in invalidating the EU-US Privacy Shield.  With individuals having the right to access their own data and the right to be forgotten (among others), it’s more important than ever to minimize R.O.T. to minimize your organization’s exposure.

Get Stakeholder Buy-In

You can’t accomplish anything within an organization without buy-in from the stakeholders.  The best illustration of the relationship of stakeholders to the data within an organization that I know of can be found in EDRM’s Information Governance Reference Model (IGRM), which groups stakeholders into three categories, as follows:

  1. Business users who need information to operate the organization,
  2. IT departments who must implement the mechanics of information management, and
  3. Legal, risk, and regulatory departments who understand the organization’s duty to preserve information beyond its immediate business value.

Without stakeholder buy-in, any comprehensive plan to manage R.O.T. within your organization is doomed to fail.

Create an Organizational Data Map

You can’t get rid of R.O.T. if you don’t know where it is.  Data mapping is simply a mechanism for knowing where your information is stored.  Data could be located in enterprise-wide systems such as Sharepoint and Microsoft 365, or individual business systems used in departments, or in collections of custodians on their local drives.  It could even be located in cloud-based platforms or social media sites or Bring Your Own Device (BYOD) devices or employees and others.  Organizations use various tools to maintain data maps and they can range from as simple as an Excel spreadsheet to as complex as a SharePoint repository to track all changes to the data map.  Choose a solution suitable for your organization and keep your data map maintained and current.

I’ll discuss the remaining four considerations for defensible deletion next week. Another Ipro cliffhanger!

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, feel free to follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

 

ROT Removal: Why Information Governance is Vital for Corporate eDiscovery

eDiscovery Information Governance

 

ROT Removal: Why Information Governance is Vital for Corporate eDiscovery

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

Corporations create a huge amount of data each year, but there is no standard from company to company on how that data is managed. Some take a “keep-everything” approach, while others strive to retain only what’s necessary for operations and compliance.

But even with some records management policies in place, a significant percentage of an organizations’ data is ROT (Redundant, Obsolete, Trivial):

  • If your files are like those on my laptop, then you have a perfect example of redundant: there are multiple versions of the same document, along with various iterations throughout the revision of a document.
  • For obsolete, just think of announcements and reminders from previous events or webinars long past.
  • And finally, for trivial, we can turn to today’s eDiscovery Blues™ All joking aside, sports news updates and online shopping ads have become such a regular source of data, that some companies build templates and filters, which automatically remove them from searches.

Technology has definitely made it easier to move through large datasets, and cloud storage has made hanging on to all this data more affordable (at least in the short term). Add this to the traditional eDiscovery approach of putting off collecting data until well into the litigation cycle, and it’s easy to see why ROT can grow within a company.

But there is a reason why Information Governance is the first step in the eDiscovery Reference Model (EDRM). Keeping enterprise data managed and organized can make it easier when decisions must be made due to investigations, litigation, and other triggering events. It’s a middle ground between looking for a needle in a haystack and burning the haystack altogether, something like having a 3D map of only the hay that’s needed.

Before I take this metaphor beyond its breaking point, I’ll put it in more straightforward terms: instead of simply storing data, you store it in a meaningful way which anticipates future legal needs.

By doing this, along with game-changing technology like In-Place EDA — which allows legal and compliance teams to analyze data where it sits (before collection) — you can settle internal investigations quickly or use that data offensively to help win a dispositive motion or more favorable settlement before discovery demands are served. You also reduce the amount of data potentially sent to outside counsel and ALSPs for processing and review, which are the costliest stages in the eDiscovery process.

When data is tidy, it’s easier to search through when the stakes are high. Besides, you know you’re going to check the latest scores and do a little online shopping when your brain needs a distraction. No need to fill up your inbox with such rot.

Want to hear a full discussion on In-Place EDA?
Listen to this deep dive from Mike Quartararo from ACEDS, Frederic Bourget from NetGovern,
and Ryan Joyce and Jim Gill from Ipro!

Top 3 Challenges for Corporate Legal Teams

top corporate legal challenges

Top 3 Challenges for Corporate Legal Teams

A recent stat-filled infographic, General Counsel: From Lawyers to Strategic Partners (released with data from Wolters Kluwer), showed that only 14% of eDiscovery work was done internally by corporate legal teams, with the rest being outsourced to traditional or specialist law firms or to alternative legal services providers (ALSP). But more and more, as companies continue putting a focus on how legal teams can contribute more to business needs overall, pressure is falling on in-house eDiscovery teams to develop new processes along with an investment in technology.

But knowing where to begin can be a challenge all its own.

That’s why Ipro created a series of resources around the Top 3 Challenges for Corporate Legal Teams:

  • Controlling Outside Legal Spend
  • Creating Operational Efficiencies
  • Mitigating Risk

Download the overview today! And stay tuned for the second installment next week!

Top 3 Challenges for Corporate Legal Teams

Legal Hold: You’ve Gotta Know When to Hold ‘Em, Know When to… Release ‘Em

Legal Hold Release

Legal Hold: You’ve Gotta Know When to Hold ‘Em, Know When to…Release ‘Em
Written by Doug Austin, Editor of eDiscovery Today

With all due respect to the late Kenny Rogers and his famous song The Gambler, maybe he would have written a completely different song if he was an eDiscovery professional.

Regardless, in eDiscovery circles, we talk a lot about best practices associated with implementing a legal hold in your organization and what you need to do to meet your preservation obligation, which (as you hopefully know) can begin well before the case is actually filed – it begins when there is a reasonable anticipation of litigation.

For example, if a current or former employee files a claim for discrimination with the Equal Employment Opportunity Commission (EEOC) regarding alleged discrimination by your organization against that employee, that’s probably a reasonable time to anticipate that allegation may eventually lead to litigation and act accordingly to implement a legal hold.

And, implementing legal holds includes the step of sending out hold notices to custodians with potentially responsive data, with explicit instructions regarding steps to preserve ESI, including suspension of any auto-delete mechanisms for email and other messaging platforms, including texts. As I discussed last week, that includes potentially responsive ESI contained on BYOD devices of the custodians.

By the way, people use the term “litigation hold” and “legal hold” interchangeably. I prefer the term “legal hold” as they can be used for non-litigation events as well – for example, regulatory audits – where it can be just as important to preserve ESI related to the audit as it can be to do so for litigation cases.

However, not too many people out there talk about best practices for releasing legal holds.  With so much data in organizations, it’s more important than ever to enforce retention and destruction policies to manage that data effectively, so releasing legal holds can be very important to an organization to reduce costs that might otherwise be required to keep that data indefinitely.

With that in mind, let’s discuss three opportunities for releasing custodians from a legal hold and two caveats to keep in mind before you release those custodians.

Opportunities to Release Custodians from a Legal Hold

You could have reasons to release custodians from legal holds through the case.  Here are three opportunities when you can consider releasing custodians from a legal hold:

  • When the Case Ends: When a case ends through dismissal, settlement or verdict, you can release the legal hold for the custodians related to that case. Obviously, right?  However, the ending of a case doesn’t necessarily mean that the ESI can be released as you’ll see in the first caveat below.
  • When the Custodian Isn’t Deemed Relevant After Analysis: It’s very common to start with a broad group of potential custodians at the beginning of a legal hold and then pare down as you can begin to learn more about what ESI they have and whether any of it is potentially relevant to the case or not. As you determine that particular individual custodians clearly don’t have data relevant to a given case (typically after a custodian questionnaire or interview process), then you can release them after that determination.  Just make sure you keep good documentation about that process and the rationale for those decisions in case you have to justify those decisions to opposing parties – or to the court.
  • When the Custodians Can be Released Due to Agreement or Court Ruling: One of the components to agree upon during the meet and confer is the scope of custodians and, hopefully, you can agree with opposing counsel on that scope, thus enabling you to release any custodians eliminated from that scope. If the parties can’t agree and the Court has to rule on scope, that becomes the milestone for determining for which custodians in question you can release legal holds and when.

Two Caveats for Releasing Legal Holds

While the three opportunities above are times when you can consider releasing custodians from legal holds, here are two caveats to consider:

  • ESI May Be Relevant to More Than One Case: It’s not uncommon for ESI to be relevant to more than one case. For example, in a series of product liability cases, correspondence regarding a company’s product quality assurance processes may be relevant to all of those cases.  The releasing of a custodian in one case doesn’t necessarily change the status of that potentially relevant ESI for other cases.  This is why legal holds need to be issued per case and tracked per case and instructions need to be clear to custodians as to their responsibilities to continue to preserve the ESI for cases that remain active.
  • Departed Custodians May Still Be Relevant: A custodian may leave your organization, but they still may possess relevant data. In those instances, it’s important that policies and procedures establish the organization’s rights and the custodian’s responsibilities to preserve that data.  This could include an organization’s rights to preserve and collect data from BYOD devices that the custodian used for work purposes.  Clear policies and procedures may ensure proper preservation of relevant ESI, or they may be your best defense if a custodian “goes rogue” and spoliates ESI once he/she departs from the organization.

Here’s a good example of a Release of Legal Hold Notice, courtesy of the Association of Corporate Counsel.

You’ve gotta know when to hold ‘em and, just importantly, know when to release ‘em.  Don’t “gamble” with your legal hold decisions, keep good documentation so you can justify your hold releases.  And, RIP, Kenny Rogers, we miss you.

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, feel free to follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

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