Keeping up with Ediscovery

Episode Notes

Transcript

The Florida Bar Podcast

Keeping up with Ediscovery

03/28/17

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Intro: Welcome to the Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by the Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

Christine Bilbrey: Hello and welcome to the Florida Bar Podcast brought to you by the Practice Resource Institute on Legal Talk Network. We are so glad to joining us. This is Christine Bilbrey and I am a practice management adviser at PRI and one of the hosts for today’s show which is being recorded from our offices in Tallahassee, Florida. My co-host is Jonathan Israel.

Jonathon Israel: Hello I am Jonathan Israel and I am the director of the Florida Bars Practice Resource Institute. Our goal at PRI is to assist Florida attorneys with running business side of their law practices. We will be focusing on a different aspect of technology each month and we will carry that theme through our newsletter, website, and blog with related tech tips and articles.

Christine Bilbrey: So this month at PRI our topic is e-discovery and joining us today we have a rock star in the e-discovery world, William Hamilton. Bill is an electronic discovery expert and the executive director of the University of Florida Law e-discovery project. Prior to joining the faculty at UF, he served as the electronic discovery partner for his national firm. He has taught e-discovery at UF for the past decade and is the co-author of the LexisNexis Practice Guide, Florida e-discovery and evidence and also the co-author of a student electronic discovery primer.

Bill is a neutral arbiter and mediator for the World Intellectual Property Organization and the author of numerous domain name dispute decisions. He has been recognized by Florida Legal Elite best lawyers in Florida and Florida super lawyers. Welcome to the show Bill.

William Hamilton: Well, thank you very much Christine. It is a pleasure being here and I am looking for to talking about the e-discovery which as you mentioned is just about my favorite topic right now.

Christine Bilbrey: That’s great, so Bill tell our listeners a little about yourself and what you have going on at the US Law e-discovery project.

William Hamilton: Well, we are doing a lot at the University of Florida Levin College of Law. As the techies would say we have a robust program. We have a conference we put on every year, actually our conferences is coming up on March 30th and it is conference designed to meet the hard questions that everyday practitioners face out in the field, so it is a very practical, educational program that we put on by bringing in 20, 25 national experts from around the nation, people that work with legal service companies and law firms and work with a judiciary.

In addition to the conference, we have courses we teach our students. We have two electronic discovery courses, a basic course, if you will, which is an advanced civil procedure course as well as a course on the data search and analytics which I think is very unique in the nation.

We also bring in the speakers during the year. We have e-discovery distinguished speaker program and just recently we had Maura Grossman coming in from the University of Waterloo. Maura is the leading national figure in what’s come to be known among lawyers as predictive coding.

Christine Bilbrey: Excellent, so in the past an attorney really had to hire an expert to handle e-discovery because it was almost considered more of an IT function. So do you find that more firms are attempting to bring this process in the house?

William Hamilton: Well, it depends upon the size of the firm and the expertise within the firm. Clearly if you do not have a lot of e-discovery experience, you are not going to go want to go out and navigate by yourself. You are going want to have somebody by your side to help you. So we recommend that when attorneys are looking at this process for the few times, they definitely hire a consultant.

However, other firms are beginning to bring e-discovery inside the organization. That doesn’t mean to e-discovery software inside your organization. What it means is that they are developing a skill set within the law firm to do the vast majority of e-discovery by their on skill sets which is just great.

And in conjunction with that what we have seen over the past four to five years is the emergence of a lot of new online cloud-based software that really is very handy to use, it’s almost intuitive and it provides a great resource for lawyers do e-discovery themselves and that’s really in many respects what it is all about because the pattern in the past was that technicians are very capable, talented technicians would be asked to collect the information and the process it and to load it into software and the attorneys had very little to do with that.

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And then the attorneys would begin to say, well now what I do with this information and they would have to start doing searches and things like that and the technicians would really have little to do with that. So, we had a little bit of split in the practice which is I think coming together now where in the last two or three years with attorneys even in mid-level firms handling mid-size cases are feeling more and more capable of handling e-discovery themselves with maybe just a little bit of outside guidance.

Jonathan Israel: So Bill from a solo or small firm attorney, can I afford some of these software packages or do I just bite the bullet and go find a consultant to do it for me?

William Hamilton: Well, I think those are two issues. Typically the consultant can be an individual, who may provide expert services and guide the practicing lawyers through the process. Another way of going about it just hire consultant that actually works for a company that hosts itself to provide access to various kinds of software.

Either way it’s an excellent way to go. If you do go with the company that’s going to help you provide access to the software then you are going to want to make sure that you have a separate billing structure for that. You want to know what are going to be the hosting costs and what are going to be a consultant services that are going to be laid on top because really what you want now are consulting services on how to do e-discovery best not merely access to the software.

Christine Bilbrey: And so when an attorney finds themselves with a case that is going to require a lot of e-discovery a lot of times that can be overwhelming from them and so say they brought in a professional aboard, they cannot completely release the ethical responsibility. So what are those responsibilities that an attorney still has for electronic discovery?

William Hamilton: Well, the rather significant and the rather expensive in terms of imposing responsibility on the lawyer essentially to make sure that every step is being done appropriately by the individuals and professionals that are working for him or her. So, what you have is, the first step, you have to identify the locations of information. Then you have to identify how it’s going to be preserved working with the client and it’s not simply enough to say to the client go preserve all the relevant information.

Well the client is not going to have a grip on exactly what is relevant. We can’t be sure the client is going to identify all the locations, so the attorney has to be involved in that process and that usually entails interviewing employees at the clients’ offices, getting the data map or a network map of the locations of information, understanding the case and where are the disputed facts in the case and where the data may be located that’s relevant to the disputed facts in the litigation.

Then the attorney has got to be involved in supervising the collection of the information, which you got to assure that this original data, these electronically stored files are collected properly and without alteration, we run the risk of spoliation in the process. And then once it’s been collected, it has got to be processed properly and processing in many ways is creating an index similar to the way you have an index in the back of a book, but there is different kinds of indexes that can be created. So the attorneys involved need to know what kind of searches they are going to be doing and what kind of power they have to have in the index.

For example, you may decide that what you’re going to need to do in your case is to find documents that are near duplicates to one another. Well if that’s the case, you have to have a processing engine built into rediscovery software that’s going to be doing what we call overlapping shingles, that is looking at overlapping patterns of words that it can compare document to document to identify documents are reasonably similar.

And then you get into the whole search issue which is how do we go about searching documents properly. Attorneys have to be responsible for that and be able to tell the court when push comes to shove that these are the search terms that we use, or this is the search technology that we use. We tested it. Here are the results of testing to make sure it is accurate and reasonable under the circumstances and then finally the attorneys have the duty under Florida Law and Federal Law to produce the information in a reasonably usable format.

So counsels needed to be responsible all along the way for those steps and be prepared to go into court to defend your behavior.

Jonathon Israel: Is these a product out there that would handle all these stages together or do you need separate products to handle each piece of the puzzle there?

William Hamilton: Oh! That’s a great question Jonathan. When the industry kind of was in it’s infancy what we had was a situation where there were different products that handled almost each step of the way and you had to make sure the products could talk to one another. So that was one of our earlier challenges. Now, we have e-discovery software that’s really integrated, so a good e-discovery software a product, you have to use the e-discovery software to do modern litigation once you have an extraordinarily small and simple case.

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It comes a bundled together, so most software and the online software just requires that the data be uploaded, then it’s processed according to various criteria and then there is various search capabilities and then it also provides for an export of the data that has been selected for delivery to the opposition. The wrinkle there of course is collection and preservation. That’s still something that attorneys must do and supervise and that typically requires a standalone product to do collection that then is uploaded to the online software.

Christine Bilbrey: And so nowadays with all of the social media, I know there is probably a lot of relevant evidence out there, how our attorneys handling that? So, if they have to go get Facebook and Twitter accounts for multiple parties, are there special products for that or is it handled the same way?

William Hamilton: Well that’s a great question and again we were talking about now what I’d like to characterize as the second wave of the electronic discovery. Now the first wave from 10 years ago was essentially dominated by what we call Microsoft Office Documents, productivity applications that produce documents that were used at work such as PowerPoint, Word Documents, email and those sorts of files.

Now all of a sudden, we are all surrounded in this, what we will call bubble of information, electronically sought information that surrounds us that that we live in which involves computer devices stored in all kinds of things around us. We’ve all heard of wired house, if you will, and social media has become dominant, billions and billions of posts are made on all sorts of social media every hour, if not every second. So, there is a huge amount of information out there and you are right this can be very important evidence in how do attorneys go about identifying it, collecting it, and then utilizing it.

The industry has lagged a bit when it comes to handling social media frankly. There is some software out here that will help gather this information.

Attorneys are also resorting to more primitive techniques such as taking screenshots and things of that nature which raise real issues of admissibility which is a huge problem and then ironically social media sites are responded by providing their own takeouts or downloads.

So actually you can go to Facebook and Twittering and some other sites and they allow you to download your own information not in a wonderfully usable format, but you can get information that way. So, we are moving forward on the social media and cloud collections, but it’s not where we want it to be. There are some products out there and I would urge the listeners to research those products and use those tools to handle social media the same way that we use collection tools to handle office documents and other locations.

Christine Bilbrey: And then when we were preparing for the podcasts, we were having more and more conversations about that. so you are talking about Twitter and Facebook, but then it occurred to me have there been cases where there was relevant information inside like a fitness app on someone’s smartphone, like say they were claiming that they been seriously injured or they were disabled, but they had been, logging 10000 steps a day? Has there been a case like that?

William Hamilton: Well, there are a number of cases like that. In fact, Fitbit was actually featured in one case where it doesn’t take a great imagination to figure how that information would be relevant if someone could claim a personal injury accident. For example that their behavior has been dramatically reduced, they can’t function as well. Their life has been impoverished and that could be directly refuted by Fitbit information that’s stored in the cloud, so it directly refutes that.

On the other hand there could be a very positive information that supports the claim. If somebody was running 20 miles a week before an accident and all of a sudden they are walking, half a mile that would be seem to me that that would be reasonable evidence from which inferences could be drawn as to the impact of the injury that they are complaining about.

So, the evidence cuts both ways. It can undercut a claim. It also can support a claim and you’re right, just look at the apps that are out there, thousands of that that you can download onto your smartphone and which is basically just reportable compute, that does all kinds of tracking and information. Automobiles for example, I think it’s pretty common knowledge among attorneys now that the automobile is constantly recording all kinds of information through various kinds of sensors that sends information back to the manufacturer but also record of the speed of the car at any particular moment, record whether the brakes were applied, record that at what point the seat belts were buckled on.

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So this information in the so-called black box in the automobile is just typical of the vast amount of information that’s out there and what’s come to be known as the Internet of things. So it’s just we just live in the world that’s abounding with evidence and which is kind of exciting because it helps us get to the truth quicker. We just have to be a little more capable and a little more enthusiastic about grabbing all this electronically stored information that’s out there.

Jonathan Israel: How quickly do you see some of these software vendors adapting to this technology, as these new apps come out, like Snapchat or WhatsApp, allowing people to send these messages to each other and then they just disappear from existence. Do you see these vendors are being able to keep up?

William Hamilton: It’s a struggle for vendors to keep up in terms of obtaining information from cloud locations because they typically think of the cloud location as a database and what happens is you want to communicate with that database, so what that cloud application will do is provide a port, if you will, or a door to get in and pull out some of the information.

And writing that was called application interface, it establishes as a handshake between a person outside the social media center, outside the database, and inside the database. I have to write it properly and have to understand it and unfortunately those application interfaces change and we don’t know all the information that’s being provided. So there really isn’t standardization across the industry so then it becomes a question of pulling done data from one app to the next and you’re right it can be expensive and it can be tiresome and frustrating.

Christine Bilbrey: So that leads us into the next question. There is so much that an attorney is expected to do to supervise the process, to think of all the ways that they need to gather the evidence where are you seeing the most sanctions against attorneys and may be their failure to handle this properly?

William Hamilton: We like to talk about sanctions but we actually don’t like to talk about sanctions. I think the key motivation for attorneys and when I was practicing full time that was of course you do not want to be sanctioned, but the thing is you want to be able to get your client the best possible result. That’s what brings the clients back. The attorney creates that consistent practice and consistent billable hours if you will. So, it is getting the evidence allows you to win. That is the big motivation.

Now the downside of the sanctions, where we are seeing them now was, in words where the needle has been for a while as a preservation? How do you preserve information and the sanctions are when you say sanctions we are talking about case dispositive sanctions and things of that nature, they are very serious. This will result from failure to preserve information because once it’s gone it is gone and then the courts involved in leveling process and the leveling process can be very serious.

So, preservation, identification, and preservation are still critically important and as you pointed out Christine in this world of multitude upon multitude resources of information, it is like trying process that attorneys need to be very diligent about at the very, very beginning of the case. We’re also seeing sanctions in terms of still sluggish behavior, attorneys not cooperating in e-discovery receiving sanctions in terms of search, Gallagher is doing a lousy job.

Another area where we see sanctions a lot are what we call self-collection where the attorney basically says to the client, go out and get me the relative information and give it to me without any further direction. Typically clients are incapable of doing that. They don’t know how to do that well and preserve the metadata and integrity of the file and also there has always be unfortunate circumstance where you don’t have a client that once exercises its obligations to the tribunal, intentionally does a lousy job collecting information. So, those are principally where we’re seeing sanctions, but it can happen anywhere along the e-discovery process if an attorney stumbles and doesn’t do a good job.

Jonathan Israel: I was going to say now that you have thoroughly scared all of our listeners about the discovery process, other than your law school where can they go out and learn how to keep up with this e-discovery and how it’s constantly changing and involving with technology?

William Hamilton: Well, really there is a lot of information out there and the information comes from a number of sources, the classic sources for competency and electronically stored information practice would be to go to the Sedona Conference. The Sedona Conference was an early think tank. They have great papers, great explications and a wonderful group that is continuing to turn out, for lack of a better expression, practical guides and white papers on how to do e-discovery properly. Another great historical think tank is EDRM, which was recently acquired by Dewclaw. They have tremendous resources there in terms of guides that can be done.

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Individuals tend to look at the graphics, EDRM model and other graphics; EDRM means electronic discovery reference diagram, tend to look at the schematics but really what EDRM has that are available to the publics are it’s guides that will work you through reach stage of e-discovery process step by steps, so that is a resource as well and there is a great blogs out there.

Here in Florida Ralph Losey has a great blog that he writes and help people keep up-to-date called the e-discovery team and Craig Ball has an excellent blog called The Ball in Your Court which also helps people up to date on events. So if you are following the Sedona Conference, following media or following Ralph Losey, following Craig Ball, you are moving in the right direction. And of course, you are always going to want to follow University of Florida E-Discovery Project and our various offerings.

Christine Bilbrey: I was going to ask you if e-discovery is now being taught in most law schools, but I am also wondering do you have older attorneys that are asking if they can come audit your classes down to UF?

William Hamilton: Really, less or more senior attorneys asking to come and audit classes but more or more we’re seeing law firms telling their associates to be who are currently law students to take e-discovery and make sure they understand it. So we are meeting that need at the University of Florida. There are a number of other courses offered by various law schools. These are typically taught by adjuncts, these are practicing attorneys that for the most part volunteer their time and come on campus to teach classes.

So we’re getting some traction on teaching electronic discovery, but frankly not as much as we should have because e-discovery really has become the guts of the civil litigation process and if it’s done right, everything works well. If it is not done properly, we have one train wreck after another.

Christine Bilbrey: Well, it’s look like we have reached the end of our program. I wanted to thank William Hamilton for joining us today.

William Hamilton: I feel pleasure being here. Thank you very much Christine, thank you Jonathan. It has been an enjoyable chat we had together.

Christine Bilbrey: I feel like we have learned a lot. If our listeners have questions for you or they want to follow up how can they reach you? Are you on social media?

William Hamilton: Well, yes, the E-Discovery Project is on social media. We have also has Twitter feed that you can follow and Instagram as well, but the best way to get in touch with me is just send me the plain old email and that email address is [email protected].

Christine Bilbrey: This has been another addition of the Florida Bar Podcast brought to you by the Practice Resource Institute on Legal Talk Network. I am Christine Bilbrey.

Jonathan Israel: And I am Jonathan Israel. Until next time, thanks for listening.

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