Discovery Deadlines at Dial-Up Speeds: Clear Signs You Need an e-Discovery Service Provider

A service provider for router and network systems sued Cisco for Sherman Antitrust act violations.  Cisco in turn sued for copyright and other violations.  Multiven, Inc. v. Cisco Sys., 2010 U.S. Dist. LEXIS 71221 (N.D. Cal. July 9, 2010).

Cisco propounded two discovery requests on the Plaintiff.  The Producing Party claimed they had a rolling agreement to review and produce discovery to Cisco.  The Defendant denied any such agreement.  Multiven, Inc., at *4.

The Defendant issued deposition notices many months later that included ESI requests that mirrored the prior discovery requests.  Multiven, Inc., at *4.  The Defendant followed-up with a motion to compel the original discovery requests. Id.

The discovery cutoff date is September 27.  Multiven, Inc., at *5.

The Court found the Plaintiffs could not finish their review and production of electronically stored information with enough time for the Defendant to make any use of the production.  Multiven, Inc., at *5.  The Court noted this self-fulfilling prophesy was created by the Plaintiff’s review and production protocols.  Multiven, Inc., at *5. 

The Plaintiff did not use an e-Discovery service provider to search and narrow their ESI because of “cost.”  Multiven, Inc., at *5.  Note, the opinion is silent on what those costs were, if there was any undue burden arguments or even if a service provider was consulted. 

The Plaintiff did not use any search terms to narrow the data for review.  Multiven, Inc., at *5.  An interesting question is whether or not the ESI was not “de-duped,” or “near de-duped” or “email threading” was at all used in processing the data for review in any litigation support review software.    

The Plaintiff’s review was done the “old-fashioned” way, with five lawyers reviewing “every bit of that giant mass of information for responsive documents.”  Multiven, Inc., at *5. 

The Plaintiff claimed it would take an additional two or three months to review their ESI. Multiven, Inc., at *5-6. 

Assuming each attorney can work 40 hours a week over three months, with an hourly billing rate of $250 an hour, that would be $120,000.00 for each lawyer, or $600,000.00 for all five. 

The Court bluntly stated:

“This is far too long and a new method for this review and production is needed.” Multiven, Inc., at *6.

The Court ordered the Defendant to hire an e-Discovery service provider to help with the “increasingly perilous situation.”  Multiven, Inc., at *6.  The Plaintiff agreed to the order, because the Defendant was willing to pay for half of the cost for the “collection, search, review, and production of documents.”  Multiven, Inc., at *6.

Bow Tie Thoughts

Bad news does not get better with age and reviewing electronically stored information certainly does not get cheaper the closer you get to the close of discovery. 

Everyone should remember Federal Rule of Civil Procedure Rule 1: The Federal Rules of Civil Procedure should be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” 

Many parties, either out of the lack of experience or because of fear of high costs, automatically assume e-Discovery is expensive. 

This fear based decision to conduct e-Discovery like it was a box of paper can drive up costs and run afoul of Federal Rule of Civil Procedure Rule 1.  Working with someone with knowledge, either an in-house specialist or outside vendor, can help control e-Discovery costs.  This can also help avoid months being lost in document review. 

Consider the following:

3 Terabyte External Hard Drive is less than $250.

3 TB worth of data is roughly 6 millions records (based on one complex case)

Estimated Review Rate: 60 records an hour

Estimated review time: 100,000 hours

Estimated Cost at $150 an hour: $ 1,550,000

It would be profoundly expensive and wasteful to try reviewing this amount of data without a service provider’s assistance in the following data reduction and review accelerator protocols:

1. De-duplication based on MD5 Hash Value.

2. Near-De-Duplication based on similar file types (such as a Word Document that was printed to a PDF file.  Different file types with the same content).

3. Email Threading, which allows the reviewing attorney to see all email threads at one time to streamline the review.

4. Auto-Coding of the litigation support database with extracted text to reduce time spent conducting objective coding for names, dates and document types. 

5. Searching the database based on keywords, dates, or email authors, or any other searchable data, developed after consulting with the custodians and possibly a service provider to find the most responsive data.

Lawyers will always be the ones to try their cases, but a service provider can help attorneys find the responsive electronically stored information they need, so months are not spent reading one email message at a time.

To DeNIST or Not to DeNIST, that is the question!

Speical Guest Blogger Pete Coons, D4, VP

This is the first of a multipart series that will help define some of the nifty, and often made up terms, in the eDiscovery lexicon.

“Can’t you just DeNIST the data and get rid of all the junk files…?”  This is a question I am often asked.  It usually comes after an individual attends an eDiscovery conference and the magical phrase “DeNIST” was uttered at some point.    The individual is led to believe, or rather wants to believe, it’s a supernatural process that separates all the wheat from the chaff.  Well, that’s only half the story…

Before we can define DeNIST we need to define NIST.  NIST is an acronym for the National Institute of Standards and Technology. (www.nist.gov).  A direct quote from the website:

“Founded in 1901, NIST is a non-regulatory federal agency within the U.S. Department of Commerce.  NIST’s mission is to promote U.S. innovation and industrial competitiveness by advancing measurement science, standards, and technology in ways that enhance economic security and improve our quality of life.” 

Further, NIST has a sub-project called the NSRL or National Software Reference Library.  An excerpt from the website www.nsrl.nist.gov  is below:

“The National Software Reference Library (NSRL) is designed to collect software from various sources and incorporate file profiles computed from this software into a Reference Data Set (RDS) of information. The RDS can be used by law enforcement, government, and industry organizations to review files on a computer by matching file profiles in the RDS. This will help alleviate much of the effort involved in determining which files are important as evidence on computers or file systems that have been seized as part of criminal investigations.

The RDS is a collection of digital signatures of known, traceable software applications.”

A digital signature is akin to a digital fingerprint.  It is also referred to as a hash value. 

In theory, every file has a unique hash value.  If two files have the same hash value they are considered duplicates. 

It also may help to know that most software applications comprise dozens if not hundreds of files. 

When Microsoft Word is installed on a laptop there are hundreds of standard files copied to a computer’s hard drive.   All of these standard install files are the same (identical hash value) no matter what computer they reside on.  

Now imagine a typical computer with dozens of software applications.  A typical computer hard drive contains tens of thousands of files.  As you can well imagine the vast majority are not user generated and hold little to no evidentiary value for litigation purposes.

The NIST list, as it has been unofficially dubbed in the eDiscovery community, contains over 28 Million file signatures. 

It is used regularly by the FBI and other law enforcement agencies to identify files with no evidentiary value.  Best of all, the list is free. 

Many eDiscovery companies take advantage of this free list and incorporate it into their software. 

The list, along with the file signatures, can be stored in a database and used to compare file signatures of data collected (hard drive, server share, etc.) for discovery purposes. 

Any file that has a signature that matches one in the NIST list is DeNISTed (removed) from the collection and it does not move further down the eDiscovery processing chain.   

And there you have it, that’s what DeNISTing means.

Here’s the rub; the NIST list does not contain every single “junk” or system file in the known Universe. 

Many attorneys and legal review teams expect the DeNIST process to get rid of every EXE and DLL on a hard drive or data collection.  It doesn’t work that way.  That’s the left over chaff… 

So while DeNISTing is a definite time and money saver and an important part of the eDiscovery process, it’s not the “one” process that will knock out all the junk. 

Next week we will discuss “Load Files”…

Peter Coons is Vice President at D4 LLC and has over 15 years of experience in litigation and electronic discovery services.