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Posted on: June 30, 2016

in Blog

Use Special Masters and Analytics to Ease the eDiscovery Burden

This blog was co-authored by David Degnan, managing attorney at Degnan Law, PLLC.

Electronic Discovery is the worst kept secret in Arizona civil litigation cases. While electronic evidence makes up 98% of all written communication, it is often overlooked as a source for key discovery. But this area of law is far less scary than it was at its inception: the cost has come down dramatically, the information is more readily accessible, and there are now over 3,000 cases to help counsel comply with this growing practice area. But this area still creates several traps for the unwary and unsuspecting attorney.

There is an ethical obligation for attorneys to understand the client's use of technology, relating to investigation, preservation & analysis of data. Download this on-demand webinar to learn the expectations of competence.

Perhaps the biggest trap is that the search for eDiscovery seems to divert the case from the merits. At some point, the parties become more concerned with procedural matters – be it metadata’s applicability, whether to DeNist, or separating parents from their children (email chains) – rather than substantive issues that are yet to be resolved by the court. In other cases, counsel’s overbroad search and production requests often yield so many documents that the client and its counsel cannot possibly search through all the documents and find the information that is relevant to the case. Instead, the parties spend the next ten years with a warehouse full of contract attorneys looking for a needle in a haystack. 

Special Masters Assisting with Complexities of eDiscovery

Enter the special master. Pursuant to Arizona Rule of Civil Procedure 53, the parties can agree to appoint a special master to work through many of these issues and to keep the case focused on the merits. In fact, a “master has authority to regulate all proceedings and take all appropriate measures to perform fairly and efficiently the assigned duties [set forth by the court].” 

A master acts to refocus the case by requiring a discovery plan and strategy; resolving ESI related technical and legal disputes in an effort to keep the case on track; and even by sanctioning a non-compliant party. By taking such steps, the parties may ensure that the case is not reasonably derailed into contentious motion practice that ultimately has little bearing on the ultimate outcome of the case (unless, of course, sanctions are awarded).

These Masters should be called upon early in large, complex cases. The cost and complexity often increases dramatically when Masters are called upon at later stages. For example, in In re Seroquel Produces Liability Litigation, 244 F.R.D. 650, 662-664 (M.D. Fl. 2007), the court appointed a special master after finding that the defendant’s production was purposefully sluggish. In other such cases, the court generally appoints a special master after one party alleges that the other failed to preserve or produce certain documents or that the parties have not been able to agree on eDiscovery issues. Of course, many of the above cases could have been avoided by requesting that the parties engage a special master at the front end of litigation. 

Getting Ahead of Costs with ECA

One of the simplest ways to control cost is during the meet and confer stage. With the help of a special master, parties in the case should set expectations from the very beginning on how discovery, and particularly data, to be exchanged. This can be as simple as stating the need for logical determined documents for all documents produced in PDF format and for them to be searchable. For firms taking advantage of review platforms, stating load file requirements, type of image files and specified metadata fields can save their client in the long run. Having the initial conversation upfront on discovery protocol, can save confusion and lower cost down the road.

Imagine the United States as the total data set collected, you are able to zoom in and out of different geographical areas until you find the place you are looking for. Once that place or “data” is found, that subset can then be moved forward for review.

After data has been collected, the use of an ECA (Early Case Assessment) tool can help estimate risk (cost of time and money) while giving a birds’ eye view of the data. ECA tools like kCura’s Relativity, Ipro’s Allegro and Brainspace Discovery 5 use extracted text and metadata, which can answer important questions like: what are the key custodians, terms, timelines and size of data moving forward for review? These tools give visual representations of data which make them easy to navigate with very little training.

ECA tools can be extremely helpful in finding things that counsel did not know to look for. These tools conceptually find similarities within the data that can be useful for your case, but at the same time, eliminate large amounts of data that are not pertinent. A very good comparison to these tools is Google Earth. Imagine the United States as the total data set collected, you are able to zoom in and out of different geographical areas until you find the place you are looking for. Once that place or “data” is found, that subset can then be moved forward for review.

Reducing the Cost of Attorney Review with Analytics

One of the most costly and time sensitive pieces of a case can be attorney review time. The use of technology – such as Predictive Coding and Technology Assisted Review -- can ensure a consistent and accelerated review process. These tools can allow reviewers to spend less time reviewing irrelevant data, and more time focusing on presenting quality evidence.

These tools can be very useful reviewing the client’s own data or data produced by opposing parties. Most of these tool work by having a seed set of data that is chosen by a subject matter expert and examined for relevance. Once this seed set is reviewed, the tool learns, conceptually, what the reviewer is looking for and examines the rest of the data for like documents.

Technology Assisted Review tools work much like the music player, Pandora. The system learns what you like by listening patterns or by you giving thumbs up or down to songs and then retrieves songs that fit your listen criteria. These tools are most effective with a knowledgeable expert from the firm teamed up with technical eDiscovery experts to help navigate through the process.

With the use of a knowledgeable eDiscovery partner and the use of a Special Master, the burden of discovery can be managed properly and at the same time, mitigate cost. 

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