E-Discovery: Not Grandfather’s Litigation

Finding Your Client’s Narrative

The Data Enlightenment

Data Density and Richness

• More information created every 2 hours than before 2003

• 1.7 billion smart phones sold in 2012 (.3 computers)

• Facebook is the world’s 3rd largest nation

• Metadata (N.S.A.) is key information

Apply the Classic Virtues

• Moderation in all e-things

• Avoid the extremes of all or nothing:

– Collection is not forensic or self-collection

– All ESI is not created equal

– Human review is $$$

• Invoke proportionality: Fed. R. Civ. P. 26(b0(2)(B)(iii)

The Proportionality Mantra

“ … the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Don’t March Blindly

• Don’t be Napoleon headed into a Russian winter!

It’s called Excel{lence}, stupid

The Solution to Negotiations

The Big Three Questions

• What e-discovery can the case afford?

• What is the important ESI?

• Where is it located?

ESI Tells the Story

• Get an ECA tool and play with the data

• Utilize graphics, lists, patterns, and facets

• Check the client’s story: early and often

Real lawyers know ESI and use e-discovery software

Learn with Proof Finder®

Know Your Data

Communications Map

Check The Results

• Stop guessing with key words!

• How do you know whether you can safely sign the Rule 26(g) certification?

• Rule 26(g) is the Rule 11 of discovery

Fed. R. Civ. P. 26(g)

By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry that … a disclosure … is complete and correct as of the time it is made; …

The Defensible Key Word Search

• Interview witness for how they talk and communicate about the issues in the case

• Make a targeted collection to test your narrative

• Load data and look at all the domains, words, entities, and communication patterns in the data

Check Your Word List

• Develop an initial broad  list of keywords and then apply stemming, wild cards, etc.

• Run it and check for heavy hits or no hits.

• Know your software indexing and search syntax

• The “to be or not to be” problem

Avoid Using Single Terms

• Adjust the search based on the foregoing using Boolean connectors (e.g. Hamilton BUT NOT county) and other expanders and restrictors

• Think search strings, not words

• The computer only knows “tokens”

Sample Your Results

• Sample for precision (not too much junk) and recall (getting all the relevant docs).

• Adjust, run search, test again, and repeat process until you

• Get to an acceptable confidence level and confidence interval

Free Random Sampler

Thank You!