What Should be the Ordinary Course of Business: Reviewing ESI in Litigation Support Software

The Defendants in Valeo Elec. Sys. v. Cleveland Die & Mfg. Co., brought a motion to compel the Plaintiffs to organize their electronically stored information production into 28 specific categories to match the Defendants’ discovery requests.  The Defense motion was denied.  Valeo Elec. Sys. v. Cleveland Die & Mfg. Co., 2009 U.S. Dist. LEXIS 51421, 1-2 ( E.D. Mich. June 17, 2009).

The Plaintiffs’ Production 

The Plaintiffs produced over 270,000 pages of documents as they were “kept in the usual course of business.”  Valeo Elec. Sys., 2, citing Federal Rule of Civil Procedure Rule 34(b)(2)(E).

The production included “emails and other electronically stored information (“ESI”) in the order that they were found on the hard drive of each document’s custodian.”  Valeo Elec. Sys., 2.  The ESI production (rightly) maintained the parent-child relation between the email messages and the corresponding attachments.  Id.

Paper documents were scanned to searchable PDFs, along with the corresponding folder tables from where the documents were stored.  Id.

The Plaintiff’s ESI and documents were produced on 15 CD’s. Id. Most CD’s can hold nearly 700MB of data, so the total size of the production must have been approximately 10GB to 10.5.

The Plaintiffs’ Indices and Spreadsheets

The Plaintiffs produced two indices to assist the Defendants in organizing the discovery production.  Valeo Elec. Sys., 2.

The first index was a 3 page table identifying the “custodian for each Bates range of documents and identifying certain specific documents.” Valeo Elec. Sys., 3.

The second was an Excel spreadsheet that identified the ESI as follows: 

1. Document Bates range;
2. Directory and, where applicable, a file name identifying where it was stored;
3. Document name or title or “re:” line for emails containing such; and
4. Estimated date the document was created or modified.  Valeo Elec. Sys., 3.

The Court further described:

The many attachments in this spreadsheet follow immediately the document or email to which they relate, and again the Bates numbers parallel those in the three page index so the source or Valeo employee from whose computer the documents were obtained can be identified for each grouping of documents. Valeo Elec. Sys., 3.

The Defendant’s Motion to Compel

The Defendants engaged in what their associate attorneys must have thought was a Death March style review of the 15 CD’s of discovery without using any litigation support software.

The Defendants complained they had to “manually open each and every electronic file on each of the [15] CDs produced.” Valeo Elec. Sys., 4. Additionally, the Defendants had to “ope[n] and revie[w] each of the thousands of individual electronic files.” Valeo Elec. Sys., 4. They also claimed the ESI was “innocuously” named to frustrate discovery review. Valeo Elec. Sys., 4.

The Defendants wanted the Plaintiffs to organize their production to match the 28 categories from the Defendants’ discovery requests. Valeo Elec. Sys., 4-5.

Form of Production under Federal Rule of Civil Procedure Rule 34

A party’s discovery obligations pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i), require them to “produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Valeo Elec. Sys., 6.  To put it bluntly, the producing party can produce the ESI in the “usual course of business” or label and organize them.  Id.

The Plaintiffs produced the ESI as it was kept in the usual course of business.  This was the end of their discovery production obligations.  Valeo Elec. Sys., 6-8.

The Court described the Excel spreadsheet as the closet thing to a “magic decoder ring” the Defendants were going to get from the Plaintiffs.  Valeo Elec. Sys., 6-7.

This included relevant metadata in an index, Bates stamps by custodian and in an estimated chronological order.  Valeo Elec. Sys., 6-7.

The Court held the Plaintiffs met their discovery obligations and had no further duty to “organize” the production for the Defendants. Valeo Elec. Sys., 7.

 Best Advice for a Law Firm: Invest in a Litigation Support System

These two indices may be the nearest thing approaching a “magic decoder ring” and defense counsel may consider it of no more help than the Rosetta Stone leaving him and his associates hours of work ahead to comb through what was previously undecipherable hieroglyphics on the 15 discs. Nonetheless, all ESI documents produced are searchable in Adobe and/or other commercially available litigation search programs. Following Plaintiff’s counsel’s demonstration on June 17, it is determined that this production, including the supplemental Excel spreadsheets provided on June 17 satisfies Valeo’s Rule 34 burden and the parties’ agreement following the Rule 26(f) conference. Valeo Elec. Sys., 7

The Defense attorneys in this case would serve their clients by investing in a litigation support software for reviewing electronically stored information.  A brute force review across multiple CD’s is not cost effective in 2009.

Not using a litigation support system such as CT Summation iBlaze, LexisNexis Concordance, or hosted services such as Kcura Relativity, plus many other fine products, to review electronically stored information is extremely wasteful in attorney time and money.

In the interest of full disclosure, I am an employee of D4 LLC.  We are business partners with CT Summation, LexisNexis, Kcura, and Clearwell Systems.  I also worked for CT Summation for nearly 2.5 years and have over 5 years experience with the iBlaze product.   

Search & Analyze with Technology

Attorney review should not be engulfed in a document quagmire of “opening” and “reviewing” the “thousands of individual electronic files” in a production.

Pre-Discovery tools can be used prior to document review to cull down a production to eliminate email from news agencies, email domains and other non-relevant sources.  This technology allows attorneys to focus their search terms down to responsive ESI that can then be export for review. 

Clearwell Systems Transparent Search Function

Almost all litigation support products index electronically stored information, allow for searching of native files, organizing, tagging for issues, analysis and everything else that goes into the current practice of law. 

Search Results in Kcura Relativity

Document review also becomes more productive as extracted text from the native files populates the “Author,” “Document Date” and other objective fields.  Associates and paralegals no longer need to manually enter that information when the data can be extracted in ESI processing and used to auto-populate a review database.

CT Summation iBlaze Database

An attorney using a litigation support system to review ESI can leverage a database populated by extracted text from ESI processing to search email by Sender, focus in by date range and review email messages and their attachments. 

CT Summation iBlaze Search Feature

Modern Lawyers: iPhones, Requests for Metadata & Automated Review

In the iPhone Age technology in the law firm is a fact of life. Not using litigation support system to review electronically stored information is comparable to whining about using Lexis or Westlaw for online legal research. Or worse yet, a lawyer refusing to use a word processing program because they only know how to dictate.  It might even violate an attorney’s duty of competency to their client, due to the volume of ESI driving up costs by refusing to use the tools to make review cost effective.

Few attorneys can explain with a straight face to their client that they spent 7 hours looking for 10 emails on 15 CD’s that could have been located in seconds with a name and date search in almost any litigation support software.  

For example, I remember being a young associate digging through 40 boxes for hours to find ONE certificate of completion in a construction defect case.  That time was cut off the bill to the client.  Litigation support software eliminates that wasted time and allows lawyers to focus on their case, not an ocean of documents.

Cost Analysis of Litigation Support Software

Some may claim purchasing a litigation support software is cost prohibitive.  Consider the following:

Partner Hourly Rate: $250 to $300

Associate Attorney’s Hourly rate at an insurance defense firm: $150 to $200

Paralegal Hourly Rate at insurance defense firm: $100

Cost of one CT Summation iBlaze mobile license: approximately $2800

Cost of a CT Summation iBlaze 5 node license: approximately $8000

Valeo Elec. Sys. v. Cleveland Die & Mfg. Co., had 270,000 pages of documents to review (the opinion is not clear as to the exact nature of the data).  Assuming an associate can review one document a minute, they are reviewing 60 documents an hour and at least 480 in an 8 hour work day. 

After 16 hours slogging through loose data on CD’s (or 960 documents in two days), a firm has paid for one CT Summation license.  After 5 associates have each worked 10 hours the firm has paid for a 5 node network system. 

Associate and paralegal review outside of a litigation support software can result with review notes on Word files, yellow tablets or random Excel files.  A law firm using a review software maintains all notes and issue tags in one database that is fully searchable by everyone using the program. 

The $20,000 Motion to Compel vs Using Litigation Support Software

Bringing a motion to compel in Federal Court costs anywhere from $10,000 to $30,000, depending on the nature of the dispute (form of production or search terms), attorneys’ fees, and whether experts are needed for technical knowledge.  All the costs of that motion would buy you a 10 to 20 node network system with most desktop litigation support systems.

A party can host 10.5GB of data (15 CD’s worth of ESI) in a product like Kcura Relativity for approximately $70 a Gigabyte per month and with three attorney reviewers for $375 a month (total monthly cost estimate of $1110) for 9 to 27months, depending on the data, number of reviewers and processing costs.

Document Review in Kcura Relativity

Final Thoughts

Not using a litigation support software or service to review electronically stored information is like using a typewriter instead of a computer.  While I might be “Old School” when it comes to bow ties, law firms are best served by embracing technology to help control, organize and review discovery.

Back on the Record: Tips on Deposition Preparation with Technology

I have taken and defended a good number of depositions.  Preparing for deposition requires thoroughness, thoughtfulness, and not being tied to your question outline like a student actor reading a script.  Whether you are “old school” or “new school,” there are many ways to enhance your deposition practice with litigation support software.

There are many effective ways to prepare for a deposition.  Here are tactics I have used with and without technology:

Option 1: No Deposition or Litigation Support Technology

Discovery is maintained as paper in boxes or a document depository.

Documents from the repository are selected and copied for the deposition.

The lawyer attends the deposition with a trusted Redwell Folder under their arm.

The question outline is prepared on a yellow legal pad.  More software friendly lawyers will use Word or Wordperfect for their outline.

This is a tried and true method that worked for lawyers from Clarence Darrow’s time to Gerry Spence.  If you are organized and keep your exhibits in order, this is an effective way to depose a witness.

The downside: if you have a lot of paper exhibits, you can lose time wadding through a stack of paper if you want to take an exhibit out of order.  Additionally, finding a document not selected as an exhibit you want to use in response to answer might require time to go off the record and check the document depository.

Option 2: Limited Use of Litigation Support Technology

Many law firms today use CT Summation iBlaze, LexisNexis Concordance, LiveNote or other litigation support software (LSS) to manage discovery.  These are all fine tools with their own strengths in preparing for a deposition.

The “hybrid” approach is using litigation support software instead of a document depository.  Searching for a document across a database is extremely faster than sending an associate attorney on a spelunking expedition to the document depository.

Lawyers and paralegals preparing for deposition can search for responsive exhibits in their LSS database.  These searches might be based on authors, recipients or date ranges on emails, faxes, or letters.

Exhibits sets are then printed for the deposition and the rest of the process follows Option 1.

Option 3: Full Use of Litigation Support & Trial Presentation Technology

Going “full technology” is used by lawyers who have successfully deposed witnesses with Options 1 and 2.  They are comfortable with technology and understand how to leverage it to their advantage.

As in Option 2, associate attorneys or paralegals search for deposition exhibits in the firm’s litigation support software.  Documents selected for deposition exhibits are marked as a “Hot Document” or noted in the database.

Many LSS programs allow users to create folders, such as “Defense Witness” or “Plaintiff PMK.”  Documents can be selected for witness folders as a way to organize exhibits.

While preparing deposition exhibits, attorneys can prepare their deposition outlines with linked exhibits in their litigation software.  This organization helps focus the deposition and allows the deposing attorney to move beyond a yellow legal tab.  Coupled with a real time feed from the court reporter, a lawyer can see their question outline and the witness’s answers at the same time.

Sophisticated techno-attorneys can conduct a deposition without paper exhibits.  Instead of a Redwell Folder full of paper, exhibits can be labeled digital on a DVD.  Digital copies can be given to both the court reporter and opposing attorney.

In CT Summation, this can be accomplished with a Browser Briefcase for non-CT Summation users or Summation Briefcase Format file (SBF) for Summation users.  Either format can be provided to opposing counsel and the court reporter at the deposition.

Exhibits can be numbered in advanced in the litigation support program.  The court reporter can mark the DVD/CD/External Hard drive with the exhibits as “Plaintiff Exhibits 1 to 37″ or whatever is appropriate.

Conducting a paperless deposition requires trial presentation software to display the exhibits for the witness.  This would include such products as Trial Director by inData.

A Note on Court Reporters

Court Reporters utilize technology with real time transcription, synced deposition exhibits and many other services.  Lawyers can assist their court reporters by providing a key term list prior to the deposition, so court reporters are not trying to figure out how to spell complex scientific jargon, party names or other terms of art on the fly.

Lawyers can increase their effectiveness during the deposition with a real time feed from their court reporter (for example, LiveNote, CT Summation and other fine products).  The deposing attorney can track answers as they come in, catch potential transcription errors and effectively compare prior answers for consistency from the witness.

For deposition review, ask the court reporter for a transcript with linked exhibits and synced video (if video recorded).  Depending on your transcript review tool, these will have different names, such as LiveNote Evidence Format (LEF) or CT Summation Briefcase Format (SBF).

Linked exhibits are useful in checking on which exhibit the witness is discussing.  More importantly, the associate or paralegal doing deposition review does not lose time jumping from the back of a printed deposition’s exhibits to the text.

There are many ways to take a deposition, be it with the Redwell or a laptop under your arm.  What matters is to look at the tools your firm employs and find the best deposition strategy for you.

Mock Motion in Limine Arguments to Exclude ESI

Michael Berman, Esq., of Rifkin, Livingston, Levitan & Silver, LLC, argued to excluded email messages and a voice mail at the CT Summation Best Practices Summit, held in Washington, DC on May 20^th, 2008.

 The Best Practices Summit included a mock motion in limine hearing.  In the fictional case, the Plaintiffs attempted to prove breach of contract and break of fiduciary duty with email messages, native file contracts and a voice mail.  The Defendants sought to exclude these exhibits on admissibility grounds.

 Watch Mr. Berman’s arguments to see the admissibility challenges to the electronically stored information.  Also note, on the right screen you can see CT Summation iBlaze with a Real Time transcript and on the left screen the exhibits presented with Trial Director by inData Corporation. 

Deposition Review with CT Summation iBlaze Color Highlighting

You can open my old Civil Procedure course book and see I usually highlighted cases with three colors: Blue for the “Issue,” orange for “Rule,” yellow for “Analysis” and a note in the margin for the “Conclusion” (IRAC for the non-lawyers). Law students have been highlighting and writing in textbooks since the “Paper Chase,” be it in search of “peppercorns” in Contracts cases or untying the Gordian Knot in Asahi Metal Industry Co., v. Superior Court.

 The latest version of CT Summation iBlaze allows for issue color highlighting in deposition review. [1] The new feature in CT Summation iBlaze 2.9.1 allows for a lawyer or paralegal to color code all of their issues, select favorite issues (most likely the key issues or facts) or assign a specific color to a user.

 For some background, I first started using CT Summation iBlaze back with version 2.6. I later worked for CT Summation for two and a half years demonstrating the product at seminars and tradeshows.

My main assignment when I used CT Summation iBlaze was summarizing 60 depositions and reviewing documents. While nothing beats the analysis of a good note about a deponent, the color highlighting feature would have been very helpful for the managing attorney to visually look for issue colored excerpts on reviewed transcripts.

 Here is how I would use the new transcript highlighting in deposition review:

 Assign colors to 1 to no more than 5 issues as “Favorites.” For example, if I were representing a plumber in a construction defect case, I would have an issue for “Plumbing Work” and assign the color blue. I would assign “Damages” the color red. In that case, I might have issues based on the Plaintiff’s causes of action, the plumber’s defenses, facts relating to the other subcontractors and the damage to the property. I would avoid “color confusion” by assigning every issue a color.

 I prefer my deposition summaries to be each question and answer compressed into one statement for review.  [2] To accomplish this in CT Summation iBlaze, I would select the deposing attorney’s question and the deponent’s answer. I would then do a right click to the left of the transcript line number and select the “Add Note” option.

Once the Note appears, I would then type in my summary of the question and answer. I would then Issue code as needed for each note. My “Favorite” color coded Issues will appear if I have selected the option to “Show Only Favorites.”  

The above would enable the reviewer to skim the transcripts visually for the colors Blue or Red guide their review. 

Those reviewing the deposition summaries may do so in CT Summation or a print out that includes the color highlights and notes. Additionally, you could print the notes creating a true summary of the deposition as paper or as a PDF.

 There are many ways to conduct deposition review in CT Summation. The above are just a few strategies for deposition review. Nothing will ever top the ability to do integrated searches across multiple transcripts or organize notes by issues. However, the color highlighting is a helpful new tool for deposition review.

 

---

[1] In the interest of full disclosure, I worked at CT Summation for 2.5 years.

[2] There are many ways to summarize depositions in CT Summation iBlaze, from copying excerpts into Notes, Digesting and many other combinations.