Collecting and Analyzing iPads in Litigation

In the Division 1 LinkedIn Group earlier in February, Jim Zack from long-time Forum Sponsor Navigant Consulting posted a link to an article on Navigant's website called "Collecting and Analyzing iPads: What You Need to Know."

As an aside, if you are not a member of the Division 1 LinkedIn Group, it is a great way to stay up-to-date with announcements for Division 1, articles such as the one Jim posted, and with the Dispute Resolver generally.  Become a member, and then start a discussion! Now, back to the Navigant article.

Navigant consultant Cuyler Robinson's article outlines some of the issues that one has to deal with when looking for relevant documents and emails in a corporate environment where iPads and other tablets quickly are replacing laptops as the mobile computing hardware of choice for executives and lawyers.

iPads have been around only for five years at this point, and the big issue is that Apple's device security complicates both forensic imaging and forensic data gathering. Apple keeps what's under the hood in the iPad operating system secret, leaving e-discovery vendors and attorneys alike flatfooted when trying to figure out how to gather relevant information.  Add in that backups are made either through iTunes or into the iCloud, and you have multiple layers of complexity involved in trying to get relevant information.

Cuyler's article is well worth the read as a reminder that e-discovery will continue to evolve in the same way that electronic devices generally do.

I mean, how difficult would it be to try to gather electronic data for litigation from Google Glass?

If you have experience with gathering forensic data from this "new" media -- from apps on phones or tablets or the watches or eyeglass computers that are being developed, we would love to hear your experiences.  Was it difficult? How, if at all, can you tell whether relevant information has been spoliated on a tablet?

Discovery in Arbitration: Take Aways from Division 1's Mid-Winter Lunch Program

Division 1: Litigation and Dispute Resolution

This was one of the handouts given during Division 1’s lunch program on Discovery in Arbitration. Special thanks to our speakers: Kelsey Funes, Phelps Dunbar LLP; John Bulman, Pierce Atwood, LLP; Nancy Wiegers Greenwald, Construction Dispute Solutions, LLP; and Linda Turteltaub, Skanska USA Building Inc.  Additional materials relating to the  presentation have been posted  in Division 1’s Dropbox. Please e-mail Division 1 Chair, Nick Holmes, nholmes@nkmlawyers.com, to receive an invitation to the Dropbox. 

The Dirty Dozen:

Best Practices for Discovery in Arbitration

1. Conduct discovery in stages or phases.

2. Use the neutral’s help to create a discovery blueprint.

3. Focus on the relevant facts early. Conduct early witness interviews and think about what you really need to present the case to the arbitrator(s).

4. Require each party with an affirmative claim to specify their damages (category and amount) in the early stages of the case.

5. Use negotiated discovery protocols (search terms; custodians; deposition time limits)

6. Narrow the issues to be arbitrated. Resist the tendency to tell the entire story of the construction project. Focus on the matters in dispute.

7. Select appropriate arbitrators. Select arbitrators with appropriate subject matter and process expertise.

8. Make the most of your preliminary hearing with the arbitrator by having at least a preliminary plan for discovery. Know the schedules of the key participants (including key witnesses) and be ready to commit to a discovery schedule and a hearing date.

9. Include flow-down provisions in your contract to be sure all of the parties can be brought into the arbitration.

10. Work with your client and opposing counsel to craft a written discovery plan before the first call with the arbitrator.

11. Consider allowing direct testimony by written submission.

12. Submit a form of award to arbitrator with post-hearing brief.

Top Five Things to Avoid

1. Don’t – Provide for the Federal Rules of Civil Procedure or other state procedural laws to apply to discovery in an arbitration.

2. Don’t – Provide for judicial review of errors of fact or law. (But, consider the AAA and JAMS appellate process if the case warrants it).

3. Don’t allow motions in limine.

4. Don’t use four witnesses or documents when one will do.

5. Don’t engage in petty discovery disputes.

Predictive coding and litigating force majeure clauses in construction contracts

By Drew Lewis, Esq., ediscovery counsel at Recommind

Construction lawyers understand the importance of a comprehensive force majeure clause.  But in an increasingly tumultuous world where extraordinary events are difficult to predict, where can litigators find the evidence to support (or refute) claims of impossibility or impracticability?  Increasingly, the answer is in their client’s own data.  And with data volumes increasing on a daily basis lawyers are turning more frequently to predictive coding as their tool of choice.

Predictive coding, at the most basic level, is a machine learning system where exemplar documents are provided and the system retrieves other documents that are conceptually similar to the exemplar(s).  The system is language agnostic so it is not simply returning other documents that use the same words; rather it is returning documents regardless of how dissimilar they might appear based on key word analysis alone.  The use of predictive coding was first approved by a court in Da Silva Moore v. Publicas Groupe SA, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012); since that time it has become the subject of comment (and controversy) in the eDiscovery community. 

The ultimate benefit of predictive coding, and other advanced machine learning techniques, is not simply the decrease in labor hours (and subsequent cost to your client).  Instead, the ultimate benefit is to extrapolate the lawyer’s knowledge and insight to data volumes once thought unimaginable.  This extrapolation results in the ability to rapidly find what actually matters in the case, and leverage that information in a strategic manner.

In the construction context it can be vitally important for a party trying to prove (and even disprove) a claim of impossibility of performance by providing deep insight into the digital conversations of key players in the case.  In several instances, the party claiming unforeseen circumstances made performance impossible has produced documents – without the aid of this technology – only to have those documents examined using advanced technologies such as predictive coding, and having their entire theory undone by the data.  Predictive coding can isolate the key documents that showed what the performing party knew at the time of contract formation, and more importantly what they did to explore alternative performance.  The data often stands in stark contrast to the claims made in the pleadings, and it becomes clear what the performing party really knew (and when they knew it). 

Predictive coding, as part of a system of search techniques provides deep insight into what actually happened once performance became impracticable, but does so in a fraction of the time generally associated with the review process.  Parties on either side of the line in construction cases are well advised to discuss the use of this technology with their clients.

Good Articles on E-Mail Fundamentals for Construction Professionals

E-mail forms a significant portion of the documentation available for a construction project, particularly when resolving a dispute. Most, if not all, of my cases involving construction issues like the scope-of-work, delays, and defects have relied heavily on the e-mail communications sent before, during, and after the dispute arose.

Gene Heady with Smith Currie & Hancock LLP posted a good article making some helpful recommendations for the use of e-mail by construction professionals during a construction project, including:

1. Avoid using foul language, sarcasm or off-color humor.
2. Keep your e-mails simple.
3. Give facts not opinions.
4. Avoid being self-critical in internal e-mail communications.
5. When upset or angry, rigorously adhere to the 24-hour rule.
6. Use the Subject line to quickly and accurately convey the substance of the e-mail.
7. Only discuss one project in each e-mail.
8. Follow-up important e-mails with letters.
9. Assume deletion of e-mail will not prevent its later recovery.
10. Maintain privileged nature of attorney-client communications.

The entire article is well worth a read, along with a recent companion article from Lee Schumacher at ARCADIS which makes some additional suggestions.

Thanks to ARCADIS for bringing this to our attention through their Construction Claims Blog.

Latest Wave Of The Litigation World -- Technology Assisted Review (TAR), by Jared R. Lake, RCSP, BDO Consulting

Year over year, the main line of legal press generates a fair amount of "noise" with articles in their periodicals, publications, journals, and blogs about the rising expense and burden surrounding the litigation world- as it does with the rapidly changing world of litigation technology. The use of technology has become common place in litigation.  Yet, even as technology related law experiences gains in both admissibility, as well as understanding, parties are under more scrutiny with respect to tolls they have utilized to identify, preserve, and collect electronically store information (ESI).

Enter the latest technology wave to crash into the litigation world- Technology Assisted Review (TAR).  The Blair Maron study empirically established beyond a statistical doubt that humans are not nearly as accurate than they self-reported being when working amidst a heterogeneous data set of documents that have a variety of different data types and formats...or using ad hoc, keyword as the lone approach to identifying relevant ESI, for that matter. This, then, is a very important factor that should be at the root of and interwoven into the foundation of evaluating the effectiveness of automated search technology and accompanying tools with respect to their positive impact on litigation practices.

The 2012 judicial opinion approving the use of said TAR will only expedite its acceptance and utilization of this methodology.  At its core, TAR is a process for ranking or coding a collected corpus of ESI by using a computerized system that harnesses a the knowledge base of a multitude of subject matter experts on a smaller set of documents- and then takes license and liberty when applying them to the remaining documents in the corpus of the collection.

How does this happen?  It could be through a few different methods:

1.      algorithms can be to either show how similar- or dissimilar- the remaining documents are to what has already been coded as "relevant"  to a litigation matter by subject matter experts'

2.      Or by implementing methodologies that develop a set of stringent, systematic rules that essentially emulate the patterns of the expert decision makers processes.

3.      Generally, TAR systems incorporate the use of statistical and/or sampling techniques that serve as a road map of sorts to guide and measure the overall process.

There is, importantly, often an accepted trade-off for the practitioner between precision and volume.  The system to “retrieve more documents” comes with an expense- figuratively and literally- of decreasing accuracy/precision, resulting in the presence of more irrelevant documents.  For this reason, logically, practitioners and litigating parties would be best served to evaluate the use of TAR methods and techniques in a wide range of cases- but particularly in large and complex litigation matters.  For additional background and a glossary of terms, see Maura R. Grossman and Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, with Foreword by John M. Facciola, U.S. Magistrate Judge, 2013 Fed. Cts. L. Rev. 7 (January 2013).

A publication from The Sedona Conference, The Sedona Conference, Navigating The Vendor Proposal Process (2007 ed.), p. 29, summarizes this best:

Technology is developing that will allow for electronic relevancy assessments and subject matter, or issue coding. These technologies have the potential to dramatically change the way electronic discovery is handled in litigation, and could save litigants millions of dollars in document review costs. Hand-in-hand with electronic relevancy assessment and issue coding, it is anticipated that advanced searching and retrieval technologies may allow for targeted collections and productions, thus reducing the volume of information involved in the discovery process.

The trajectory and enormity of growing data warehouses- in concert with human language fluidity/interchangeability, and individual differences- in concert with cost factors- should make this a required approach to litigation going forward.

 

Texas Court Clarifies What Is Required to Order a Party to Turn Over Hard Drives During Discovery

As with most complex commercial litigation, lawsuits over construction often involve investigations into electronically stored information (“ESI”). In Texas, a recent case has clarified the requirements necessary to order a party to turn over hard drives during disputes over production of ESI.

In 2013, a Texas Court of Appeals in Houston granted a writ of mandamus and vacated an order to compel production of computer and network hard drives.

In the lawsuit, several former co-owners of businesses had a falling out and sued one another alleging various claims. Central to the case was whether one of the parties had misrepresented his educational background to the other.

After several disputes regarding whether responsive ESI had been produced, the trial court issued an order requiring production of forensic images of the defendants’ computer hard drives and the drives of their network servers. Forensic images are digital duplicates of hard drives prepared used to prevent any changes being made to the original source of the ESI.

The defendants sought mandamus relief from the court of appeals, arguing the trial court had abused its discretion. They argued that the order was overly broad, giving the plaintiff “carte blanche to rummage through” their hard drives without any reasonable limits to address privilege, confidentiality, or privacy.

The court of appeals granted the writ of mandamus and vacated the order. It examined the Order in light of the applicable Texas Rules of Civil Procedure, as well as a seminal Texas Supreme Court case on electronic discovery, In re Weekley Homes, 295 S.W. 3d 309 (Tex. 2009). In Texas, courts have held that providing direct access to electronic information systems is particularly intrusive and should be discouraged. An order requiring electronic data storage systems to be turned over is not appropriate unless and until the moving party has shown that existing discovery responses were inadequate and the proposed searches of the storage systems could recover the relevant missing information.

In this case, the court found that a conclusory statement that “emails must exist” was insufficient to overcome the threshold question of whether there was an inadequate production. The moving party had to present actual evidence that the production was somehow deficient. Moreover, even with such a showing, the moving party had not shown that there was deleted relevant information which could feasibly be recovered by taking a forensic image of the hardware. To do so, the requesting party should have provided information from his forensic imaging expert as to why his methods would have produced relevant deleted information.

The court also examined the requests for production at issue, and found them insufficiently specific to justify the trial court’s order. The moving party made a blanket request for servers, tablets, and laptops, which was insufficient because it did not inform the opposing parties of the exact nature of the information sought.  Specific discovery requests must be aligned with the request for the production of hardware.

The widespread use of ESI to conduct business continues to require attorneys and courts to evaluate how far parties may go to uncover documents through discovery. This case suggests that a party seeking to search its opponents’ hard drives must prepare a detailed and thorough justification of the request before a trial court can permit the searches to proceed.

In Re Pinnacle Engineering, 405 S.W.3d 835 (Tex. App.—Houston [1st Dist] 2013, no pet.).