Judging E-Discovery Disputes A Paper for the Courts Technology Conference, Baltimore, 19 September 2013 Judge David J.

Harvey 1 A Judge of the District Court, Auckland, New Zealand Introduction This paper considers aspects of E-Discovery from a judicial perspective. It argues that in the quest to resolve E-Discovery disputes between parties requires an informed and pro-active approach by judges. It suggests that the first objective should be to try and avoid a disputed E-Discovery hearing, utilising proper case management techniques based not only on the requirements of the law but an understanding of how modern technology may be applied to achieve rule-based goals. But overall, judicial involvement at whatever stage in the discovery process involves aspects of judging disputes. The approach of this paper is largely a generic one and draws on the E-Discovery rules in England, the United States and New Zealand. When one examines these rules it is clear that some common themes become apparent. It is within the context of these themes that the discussion will take place, although from time to time examples from specific jurisdictions will be given. For example, England and New Zealand use a form of menu for counsel to assist them in approaching their discovery obligations. In England this takes the form of a questionnaire. In New Zealand the checklist is incorporated into the High Court Rules. Regardless of the name applied or where it may be located, the common theme is that of a menu approach that will serve as a foundation for an E-Discovery inquiry. This discussion will first consider the nature of digital information and why it is that EDiscovery poses a paradigmatic difference from what could be termed traditional discovery. It then considers some of the ways in which traditional discovery is challenged by new information systems and adopts the suggestion that, from a judicial perspective, a holistic approach to the processes that lie behind E-Discovery must be adopted, starting with the obligation by organisations and businesses to have a proper Electronically Stored Information (ESI) policy and the need for a Court to be aware of that when it comes to considering issues such as information destruction. I then move to a consideration of document review and discuss the need for a new mindset on the part of lawyers and judges based on the need for consultation and co-operation between the parties and a recognition that E-Discovery must be based upon what is reasonable and proportional to the case. I then move on to consider the obligations of the parties within the context of this mindset and then move to an examination of the process, using the New Zealand discovery checklist as an example of the menu based approach to discovery process and obligations.

LLB (Auckland) 1969, M.Jur (Waikato) 1994, PhD (Auckland) 2012, Part-time Lecturer in Law and Information Technology, Faculty of Law, Auckland University. 1

I then move to discuss the approaches to E-Discovery using technology and discuss the need for proper education in the use and abilities of technology in discovery both on the part of lawyers and the judiciary. I argue for active judicial involvement and discuss the rationale for this approach. Once again the themes of reasonableness and proportionality underpin judicial activity. I argue that judicial activity should not be restricted to the courtroom and in the context of deciding a particular case should be present throughout the entire process. Creative and effective use of E-Discovery case conferences is as important as the resolution of disputes in the courtroom. With proper case conferencing, any in-court discovery disputes should be of limited and focussed scope. I then move to consider the E-Discovery process and give some examples of how judicial involvement may take place within the context of considering document retention policies, examining issues surrounding document custodians and issues surrounding keyword searching within the area of Early Case Assessment. Examples of the use of technology within these stages of the examination will be considered. I close the consideration of how judges get involved with a discussion of some of the matters that may form an agenda for a case management conference. The Digital Information Environment To understand why E-Discovery is important it is necessary to step back and consider some of the wider implications of new digital technologies. Digital technologies, and especially digital communications technologies, have brought about a new paradigm in the way in which we communicate with one another. Many of our understandings about communication have developed in an entirely different paradigm that was in a slow process of development from the first information technology the printing press down through telegraph, wireless, the telephone and television. The photocopier was perhaps the herald of what was to come. It enabled the reproduction of printed material into multiple copies. But unless they were in some written form, most communications were unrecorded. Telephone calls were unrecorded unless one made a note of what had been said usually a summary. Personal conversations likewise. The written note was an aide-memoire in the most literal sense. These collections of paper were the meat and drink of discovery in civil proceedings and the primary focus of discovery was of the trail of documents associated with a particular action. A piece of paper with writing on it was the principal focus of the exercise. From a functional perspective, a document comprised a medium (paper) that contained information (writing). What was perhaps most significant about such a document is that it is coherent. And that is not the case with digital information. Where information is written upon a piece of paper it is quite easy for a reader to obtain access to that information long after it was created. The only thing necessary is good eye sight and an understanding of the language in which the document is written. Data in electronic format is dependent upon hardware and software. The data contained upon a medium such as a hard drive requires an interpreter to render it into human readable format. The interpreter is a combination of hardware and software. Unlike the paper
2

document, the reader cannot create or manipulate electronic data into readable form without the proper hardware in the form of computers. 2 Schafer and Mason warn of the danger of thinking of an electronic document as an object somewhere there on a computer in the same way as a hard copy book is in a library. They consider that the e-document is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, are assembled, processed and rendered legible for a human user. Schafer and Mason observe that in this respect the document as a single entity is in fact nowhere. It does not exist independently from the process that recreates it every time a user opens it on a screen. 3 Computers are useless unless the associated software is loaded onto the hardware. Both hardware and software produce additional evidence that includes, but is not limited to, information such as metadata and computer logs that may be relevant to any given file or document in electronic format. This involvement of technology and machinery makes electronic documents paradigmatically different from traditional documents. It is this mediation of a set of technologies that enables data in electronic format at its simplest, positive and negative electromagnetic impulses recorded upon a medium to be rendered into human readable form. This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object. Much will depend, for example, upon the word processing programme or internet browser used. Digital information technologies enable information to be recorded in a variety of forms. No longer is information simply recorded in writing. Audio, visual, audio-visual, print all may be reduced to the data streams on the multiplicity of devices that populate the digital communications environment. New information technologies themselves have two major aspects. One is the content layer and we are immediately familiar with this. In fact it is probably the main thing that we think about when it comes to information technologies. But there is more to it than that. Every new information technology and this has been the case from the printing press onwards has its own particular properties or qualities that significantly differentiate it from other earlier information technologies. This is particularly the case with digital information systems. Examples of these properties are
2

Persistence, Continuing change or what you could refer to as the disruptive element, Dynamic information Delinearisation of information Dissociative enablement, Permissionless innovation,

Burkhard Schafer and Stephen Mason, chapter 2 The Characteristics of Electronic Evidence in Digital Format in Stephen Mason (gen ed) Electronic Evidence (3rd edn, LexisNexis Butterworths, London 2012) 2.05. 3 Burkhard Schafer and Stephen Mason, chapter 2 The Characteristics of Electronic Evidence in Digital Format 2.06. 3

Availability Participation Searchability Retrievability.

Once we begin to understand the importance of the qualities or properties of a new information technology then you begin to get some insight into Marshall McLuhans comment the medium is the message. 4 Although we may be dazzled by the content which McLuhan suggested was the piece of meat that attracts the lazy dog of a mind, we can begin to get some understanding of how it is that new information technologies are going to change not only our approaches towards information but also some of our fundamental behaviours. This may reach the point where even the values that we may attribute to information that underlie certain behaviours may themselves change. And this is the case with the law. One only needs to consider the rise of remote evidence giving both spatial as the case with audio visual links or temporal as is the case with pre-recorded evidence to understand the revolutionary impact that these forms of evidence giving are going to have upon the traditional Court case. Technology can enable the non-presence of witnesses. Formerly, court cases have been all about physical presence of all the players. Indeed in the early days of pre-recorded evidence or audio visual links Judges scrambled to find reasons why these technologies should not be used emphasising among other things the importance of presence. 5 However there are hidden sides to the impact of new technologies and these lie in the way in which the properties that I have described of new technologies influence us. Marshall McLuhan said we shape our tools and thereafter our tools shape us and this of course gives rise to the question of whether or not the internet and digital technologies change us forever. Underlying this theory is the concept of neuroplasticity the ability of the brain to adapt to and learn from new stimuli. The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember. 6 His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability. The neuroplasticity argument is picked up by Susan Greenfield 7 who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are
Marshall McLuhan Understanding Media: The Extensions of Man Critical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003). 5 Aeromotive v Page (High Court, Hamilton CP 31/99 16 May 2002 Harrison J) For discussion see David Harvey Internet.Law.NZ 3rd ed. (Wellington, LexisNexis, 2011) p 512 et seq. 6 (Atlantic Books, London 2010). See alson Nicholas Car Is Google Making Us Stupid Atlantic Magazine 1 July (last 2008 http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/ accessed 31 May 2013). 7 See especially Susan Greenfield Living On-line is Changing Our Brains New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-ourbrains.html (last accessed 31 May 2013) For this and for her assertions of internet addiction she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that "A
4

making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it. Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our quick click behaviour. We want new interactive experiences and we want them now. This view is disputed by Aleks Krotoski 8 who firstly observed that there is no evidential support for Greenfields propositions which pre-suppose that once we used the web we will forever online and never log off again. According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting. Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring. In some respects Carr and Greenfield are using the low hanging fruit of technological fear 9 to advance their propositions. Krotoskis rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between. The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that. My argument is that the impact of the internet and the digital information paradigm lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability. Environmental Challenges It is when one grasps some of the wider implications of the new digital paradigm that one understands the challenge that Electronically Stored Information (ESI) poises to traditional concepts of discovery. The amount of information that is available poses enormous problems for focussing discovery and identifying relevant material. This potentially can result in exorbitant amounts of time and money being expended on discovery often for little gain. It is therefore necessary to identify some of the objectives for a managed and effective approach to discovery of ESI. First, there is an obvious need to control disproportionate costs within individual claims that arise from the propensity of discovery, most particularly of ESI, to create an enormous amount of work in document review. Additionally, the change from the use of paper to ESI led to a tendency to reintroduce the problems of a wide ranging added train of enquiry. Parties may try to require the widest possible search parameters to find anything that might be relevant in the process of defining and enforcing a reasonable and proportionate search for ESI.

scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper" Ben Goldacre, Serious Claims Belong in a Serious Scientific Paper The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishingclaims (last accessed 31 May 2013). 8 Untangling the Web: What the Internet is Doing to You (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013. 9 Sometimes referred to as The Frankenstein Complex. 5

Senior Master Steven Whitaker identified a more significant challenge to traditional common law court-based dispute resolution systems. At a Conference in Singapore in 2011 he said that there is : a serious potential for common law jurisdictions to be put at risk as dispute resolution centres by the failure of their lawyers and courts to respond appropriately to the challenges that the discovery of ESI presents. The cost and disproportionality of discovery in litigation is a particular problem of common law civil dispute resolution systems where discovery is seen to be an indispensable tool of justice. This may have been both possible and acceptable historically when the common law nations dominated world trade and business. However, as increasingly that role extends to civil law entities (eg, the European Union in large measure and China), the attractiveness of common law systems of law for use in trade and business is, in my view, vulnerable to the exponential growth in the breadth and cost of E-Discovery in litigation. Business people in general would obviously be concerned about the rising cost of E-Discovery and the lack of predictability of the extent of the discovery process, and would be particularly so in the context of making pre-litigation decisions as to the viability of defending or prosecuting a claim. 10 The traditional approach to these problems is by judicial education, case management and changes to Court Rules and procedures to control E-Discovery. What is needed is an holistic approach to dealing with E-Discovery issues within a framework bounded by legal principle but which, at the same time, recognises that E-Discovery is not something that requires occasional judicial intervention, but in fact is a process that involves all the players, especially the Court and the judiciary, from the earliest stage. Such an approach, if properly executed, can benefit not only the litigants but also the credibility of the Court system in general. The judiciary need to be aware of the new technologies and methods to review information. Because of the quality of continuing disruptive change that is part of the Digital Paradigm it must be recognised that this will have to be a continuing process. Document Retention Policies One of the enquiries that a Judge should be making at Case Conference or Discovery Conference stage is about the document retention policies of the parties. What are the business practices of the parties in relation to the creation, storage and destruction of ESI? Proper management prevents businesses throwing up huge amounts of information in a totally disorganised state, which is difficult to access and makes finding what is required virtually impossible without expensive software and review. Software programs that organise documents as they are generated are not expensive in relation to the huge cost that can be thrown up if such software are not used. 11
Steven Whitaker International Developments in E-Discovery in Justice Lee Seiu Kin and Yeong See Kin (eds) International Conference on Electronic Litigation, (Academy Publishing, Singapore, 2012) p. 77, 78. 11 DuPont conducted an internal review some years ago and found that they had produced three years worth of data representing 75 million documents, 50 percent of which could have been lawfully deleted at a cost saving 6
10

Proper document management systems means that businesses, particularly those regularly exposed to litigation, will be better prepared for the discovery process by having their ESI well organised and readily searchable. They should create proper and effective information governance strategies. Courts need to look at being less sympathetic in terms of the orders they make and the costs sanctions they impose on such entities when they have taken no steps in this regard. How effective can judicial scrutiny of document retention policies be? In the English case of Timothy Duncan Earles v Barclays Bank Plc 12 the judges criticism of the successful banks preparedness to produce ESI, and the costs sanction imposed, led the bank to institute a program of internal training in respect of E-Discovery. Court scrutiny of document retention policies should focus upon the destruction aspect of the policy. Many discovery disputes are about destruction or spoliation. These policies may be further complicated by differing national rules relating to retention of personal data. These disputes can lead to significant awards by way of sanctions against those who appear to have been negligent in their failure to discover information. The result has been rather like the initial response to ESI discovery the disclosure of more than is necessary in an effort to avoid possible sanction. What, then, should the Court be doing about document destruction? Where necessary Judges should emphasise, by way of order or direction, the need for a) transparency and b) reasonableness in the policies employed by businesses for archiving and destruction of ESI. If the policy proves to be clear and defensible, the amount of data retained and easily accessible should be greatly reduced and be well organised. In such circumstances a court should not, except in exceptional circumstances, contemplate authorising the resurrection of and search of deleted material. The emphasis is upon reasonableness and this is one of the major themes that underlies the modern approach to ESI discovery. Document Review One of the ironies arising from ESI lies in the way that we confront document review. In the paper paradigm if a party disclosed that it had a building full of lever arch files which were likely to contain relevant documents, no judge would be heard to say that the cost of retrieving and reviewing these documents was disproportionate to the amount at stake in the case, or that the parties would only have to review 60 percent or 70 percent of them. If the paper documents were there, unless some sampling technique could be agreed, they
of US$12 million dollars. See Oracle White Paper, Lower E-Discovery Costs through Enterprise Records and Retention Management (March 2007) (Oracle White Paper) at p 4. 12 [2009] EWHC 2500 (Mercantile). 7

usually had to undergo human review - the only sure way of searching for relevant paper documents. In the Digital Paradigm computer software is used to eliminate a significant proportion of ESI from ever being reviewed by a human. Even in small cases, if all the documentation that was potentially searchable was printed out it would often fill several rooms or even warehouses. Document review is an important aspect of the factual investigation that is an essential part of common law litigation. But because of the way in which digital devices create, copy and store information across numerous platforms the old methods of manual search and disclosure that characterised the paper paradigm cannot continue in the digital age. And to apply McLuhans adage the tools themselves that we have made shape our responses. Or, to put it another way, as Charles Clark said in the context of protecting copyright material in the digital paradigm The answer to the machine is in the machine. 13 If ESI has not been organised when created, harking back to the importance of document management and retention, parties need to use digital technologies such as predictive coding software along with a number of other solutions to search for and reduce the number of documents that need to be reviewed. These search methods may mean that perhaps as much as 60 percent or 70 percent of the documents identified will never be manually reviewed Judges need to gain an understanding of these systems, encourage their use and be ready to hold direct them in cases of dispute as reasonable methods of search. This is part of the wider theme of judicial activism and judicial education in and awareness of technological solutions for ESI disputes. A New Discovery Mindset The need for a new approach to discovery was articulated by David Lender and Magistrate Judge Andrew Peck in the following way: Thus, in order to make litigation more affordable and focused the entire paradigm of discovery needs to change. Litigants and courts should approach discovery differently depending on what is at stake in the case, and how complex the issues are expected to be. There simply is no reason in most cases to produce thousands upon thousands of documents from dozens of custodians, simply because they have touched an issue, when the dispute really centers around a handful of key players

Charles Clark The Answer to the Machine is in the Machine, in: P. Bernt Hugenholtz (ed.), The Future of copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995), (Kluwer Law International, The Hague, 1996).
13

who will have most (albeit not all) of the documents that are potentially relevant to the case. 14 Thus one must adopt a horses for courses approach. The extent of discovery will differ from case to case and the themes of reasonableness and proportionality are essential in the approach to ESI cases and disputes. As was said in Rimkus Consulting Group, Inc. v. Cammarata 15 [T]he reasonableness of discovery burdens in a $550 million case arising out of the liquidation of hedge funds, as in Pension Committee, will be different than the reasonableness of discovery burdens in a suit to enforce noncompetition agreements and related issues, as in the present case. Rimkus emphasised reasonableness and proportionality noting: [w]hether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done or not done was proportional to that case and consistent with clearly established standards. 16 This approach was considered too amorphous in Orbit One Communications, Inc. v. Numerex 17 Corp. which suggested that that, until a more precise definition is created by rule, a party is well-advised to retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches. However, as new rule systems develop, reasonableness and proportionality are being emphasised, especially in England and New Zealand. In the pursuit of reasonableness and proportionality courts have to be prepared be a) robust and b) set limits to the reasonable search for documents. This may include limiting search terms or methods used. What must be recognised is that, as an aspect of the digital paradigm arising from the properties of digital technologies, it is no longer possible to follow every line of enquiry. It may well be that the smoking gun will be undiscovered. But limitations are necessary to achieve justice at an effort and cost that is reasonable and proportionate to the case. The Obligations of the Parties Part of the new discovery mindset requires a different approach from the lawyers. This brings into the focus the theme of collaboration and co-operation in the discovery process. The objectives of reasonableness and proportionality will be achieved if there is discussion
14

David Lender & Andrew Peck, 10 Key E-Discovery Issues in 2011: Expert Insight to Manage Successfully The Huron Legal Institute available from The Metropolitan Corporate Counsel at <www.metrocorpcounsel.com/pdf/2011/April/01.pdf> at p 5. 15 688 F. Supp. 2d 598, 613 n.9 (S.D. Tex. 2010). 16 Ibid. p. 613. 17 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010. 9

and agreement. The Federal Rules emphasise the importance of meet and confer obligations under R. 26(f) Courts must insist on effective co-operation and prior discussion of the extent of the search. This is made clear in the Sedona Conference Cooperation Proclamation with its call for cooperative, collaborative, [and] transparent discovery and the expectation that parties will reach practical agreement on search terms, date ranges, key players, and the like. The Process The New Zealand High Court Rules set out the various steps that the parties must take in considering discovery. These steps are present in most discovery regimes in one form or another. In New Zealand a road map for discovery is rule based. 1. The parties must co-operate in order to ensure that discovery is proportionate and facilitated by agreement on practical arrangements HCR 8.2. 2. As soon as litigation is reasonably contemplated, prospective parties to that litigation must take all reasonable steps to preserve documents that are reasonably likely to be discoverable HCR 8.3. This rule applies to ALL parties. 3. The party must make initial disclosure of documents referred to in a pleading or used when preparing the pleading. The disclosure must be made at the time that the pleading is served HCR 8.4. This is linked to 2 above and requires plantiff to undertake pre-issue discovery processes. 4. The parties must discuss and endeavour to agree on an appropriate discovery order prior to the first case management conference, addressing a new discovery checklist set out in the rules HCR 8.11. 5. At the case management conference the Judge may dispense with the discovery, or order standard discovery, or order tailored discovery HCR 8.12. Standard discovery requires the production of documents that the party relies upon or that adversely affect that partys or another partys case HCR 8.7. 6. Tailored discovery is presumed to apply instead of standard discovery if the costs of standard discovery are disproportionate to the matters at issue, if there are allegations of fraud or dishonesty, where the sums that issue exceed $2.5 million dollars, or where the parties agree HCR 8.9. Tailored discovery may involve more or less discovery than standard discovery HCR 8.8. Tailored discover requires discovery by category or by some other method that facilitates the identification of particular documents HCR 8.10. 7. The parties obligation to conduct a reasonable search for discoverable documents is now specified in the rules HCR 8.14. 8. Documents must be listed in accordance with a new listing and exchange protocol, unless the parties agree otherwise HCR 8.15, 8.16.

10

9. Inspection now takes place by way of an electronic exchange of documents, unless the court orders otherwise HCR 8.27. This means that paper documents must be scanned electronically so that electronic copies can be exchanged. It will be apparent that the themes of reasonableness and proportionality, early preservation obligations, discussion and co-operation and judicial involvement at case conference level are present in the Rules. The concepts of standard or tailored discovery are incorporated and emphasise the importance of proportionality. As a further guide there is discovery checklist which provides additional detail to the roadmap that is in the Rules. A quick study of the checklist reveals an emphasis upon the duty to co-operate, with the objective of providing a joint consent memorandum that deals with all discovery issues. In many respects the New Zealand checklist seems to fold together the Federal Rules 26 and 16 Conferences into one. In England Practice Directions contain details of a case management process together with a provisions for a Questionnaire 18. A similar checklist approach should also be adopted when looking at the methods to search and review information. In understanding the various options it is important to understand the benefits and limitations of an approach and whether that approach is suitable for the requirements of the case. The New Zealand E-Discovery Checklist in Flowchart Form

Checklist clause 1.1(a) - Review pleadings - List relevant issues - Identify relevant categories of documents

Identify

Checklist clause 1.1(b) - Hard copy and e-docs - Other agents (e.g. lawyers, accountants) Duty to preserve (rules 8.3 and 8.13)

Locate

18

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31/pd_part31b#IDAEIUJC (last accessed 7 August 2013) For discussion see the E-Disclosure Information Project E-Disclosure and E-Discovery Resources http://www.edisclosureinformation.co.uk/resources/PracticeDirection31B.html (last accessed 7 August 2013) 11

Checklist clause 1.1(c) Volume and ease of assembly Methods Time and cost involved Proportionality

Assess

Rule 8.11 and checklist clause 1.1(d) Proportionality Protocol Duty to seek to agreement

Discuss

Rule 8.11 - Aim for joint memorandum - If separate, justify position

Memorandum

Technology Use A theme that runs through the new discovery rules is the need for efficient and effective use of technology. In its consultation paper the New Zealand Rules Committee observed that delay and costs can be reduced by moving to an electronic discovery regime while the efficiency of the discovery process and the ability to achieve a just outcome can be improved. It was further noted that technology can provide more accurate solutions which can assist in identifying the most important documents more
12

quickly... the move to electronic discovery does no more than reflect what is happening in the profession in any event.19 HCR 8.2(2)(c) requires the parties to ensure technology is used efficiently and effectively where appropriate and applies to a number of different stages in the discovery process reflecting the focus of the Rules Committee. Electronic discovery or E-Discovery describes the methods by which the parties use electronic means to assist in finding, identifying, locating, retrieving, reviewing, listing or exchanging documents to satisfy discovery obligations. In New Zealand electronic listing and exchange will generally be mandatory. Although it is not necessary to use electronic methods to find, identify, locate, retrieve or review documents these methods may in fact help reduce costs in some cases. Thus the use of technology although not mandated is available as an option. Once again, elements of reasonableness and proportionality will come into play. The Rules include a helpful glossary of technical terms. The glossary defines metadata as data about data. It states in the case of an electronic document, metadata is typically imbedded information about a document that is not readily accessible once the native electronic document has been converted into an electronic image or paper document, for example, the date of which the document was last printed or amended. Metadata may be created automatically by a computer system (system metadata) or maybe created manually by a user (application metadata) depending upon the circumstances of a case, metadata may be discoverable. The glossary also defines PDF in the following way PDF (portable document format) is a file format that enables documents to be displayed or printed in a manner that preserves the format originally used by the author. A PDF file may be either a searchable image file or an unsearchable image file. The Rules also differentiate between primary data and non-primary data. Primary data is data that is readily retrievable, whereas non-primary data is generally archival data that is not readily retrievable. Many organisations use backup tapes to make a full copy of an employees electronic data for disaster recovery purposes. These backup tapes contain archival data and are not readily retrievable and are not primary data for the purposes of the rules. Another important concept is that of native format. The glossary to the Rules describes native electronic document or native file format as an electronic document stored in the original form in which it was created by computer software programme. Lawyers will often create a document in Microsoft word and then convert it into a PDF before emailing the document. This is because the PDF preserves the original formatting and cannot be edited.

19

Rules Committee Consultation paper: Proposals for reform of the law of discovery including electronic discovery and inspection 2.10 at paragraph 18. 13

It also eliminates much of the metadata underlying the word document. The native format of the document in such a case is the Microsoft word format and not the PDF format. Documents can be exchanged electronically either in native format or in PDFs. If emails are exchanged in native format they can be viewed by opening them in an email client. However if emails are exchanged in PDFs an electronic photocopy of the email is created and can only be viewed by looking at the PDF. The discovery check list under Listing and Exchange Requirements states to reduce unnecessary costs of listing documents parties are encouraged to: a) Use native electronic versions of documents as much as possible; and b) Use the extracted metadata from native electronic documents instead of manually listing documents; and c) Convert documents to image format only when it is decided they are to be produced for discovery; and d) If document images are to be numbered, only number those images if they are to be produced for discovery. The discovery check list in addressing the issue of tailored discovery identifies methods and strategies for locating documents. The parties must seek agreement on the methods and strategies that are appropriate to conduct a reasonable and proportionate search for the documents that are identified including the following: a) Appropriate key word searches; b) Other automated searches and techniques for culling documents including concept searching, clustering technology, document prioritisation technology, email threading, and any other new tool or technique; and c) A method to be used to identify duplicate documents; and d) Where the specialist assistance is required to locate documents efficiently and accurately. The identification of various electronic strategies for locating documents is interesting. The glossary defines some of the terms. Clustering means grouping documents by identifying conceptually alike documents. Concept searching means a search that attempts to match results with the query conceptually rather than just by identity or similarity of words. Document prioritisation technology is also known as predictive coding and means the technology that analyses the decisions of the human review of a sample set of documents. The software then prioritises or ranks the remainder of documents based on the decisions made on the sample documents which allows the most relevant documents to be identified first. Email threading means the technology that allows the identification of related emails in a thread and can identify the email end point and the unique emails in the thread.

14

Some of these tools and technologies are more effective than others. Key word searching is a fairly blunt instrument. Key words create a black or white scenario based upon whether or not a document contains a word or does not. The difficulty with key word searching is that it may result in irrelevant documents being identified because the key word selected may have different meanings or context to what is desired. I discuss key word searching below in the context of Early Case Assessment. The important thing to remember with key wording searching is that the construction of the search itself is critical together with an understanding of the limitations of the method. Ideally the construction of the search string or key words should be discussed with other parties so that the key words may be agreed. Because of its limitations, key word searching is not an ideal method of cutting and filtering documents and other automated searches may be preferable. But, under the principles of the rules, if key word searching is to be used it is important to agree an approach with the other side to avoid conflict. The check list refers to a method used to identify duplicate documents. One way of addressing this is by de-duplication. This is referred to in the glossary as the process of identifying and removing duplicate documents from a collection of documents so that one unique copy of each document remains. The glossary then becomes quite technical. It states a cryptographic hash function such as the message digest algorithm five (MDA5) may be used to generate a digital fingerprint for an electronic document. The digital fingerprint of a document can then be electronically compared against the digital fingerprint of any other document to determine whether the documents are exact duplicates. Duplication may also be implemented by using a cryptographic hash function applied to a group of documents. In the paper world the process of duplication required visually sighting documents to ascertain if there were duplicates. The technology makes the identification of duplicates more effectively. Once again it is important that the parties discuss how they should identify duplicate documents. Document review is the largest cost of the discovery process although many of the costs can be avoided. Some lawyers are still using the same practices that they used when reviewing paper documents, adding unnecessary cost and burden to the discovery process. It is not unknown for the document review process to be carried out by printing out hardcopies of all the electronic material and then laboriously reading through document by document. For the reduction of the costs of discovery and to maintain the emphasis upon proportionality it is important to reduce the volume of documents for lawyers to review. Much of the information that may be reviewed will be irrelevant or redundant duplicated information and the solution is to address removing the information prior to starting the review. Technology aided techniques are a solution to reduce the burden and cost and some of the strategy are suggested in the check list. These have been outlined above and include: 1) Concept searching; 2) Clustering technology; 3) Predictive coding or document prioritisation technology;
15

4) Email threading; 5) Near duplicate identification; 6) Native file review. These technology solutions each require a brief explanation. Concept searching can be useful when large volumes have to be examined and the search attempts to match results with the query conceptually. The methodology is based not upon key words but upon the subject matter of the document paragraph or sentence. Concept searching adds additional information to the very basic key words as it evaluates both words and the context in which they appear. Clustering technology can bring cost savings in the document review phase. Clustering groups documents by identifying conceptually alike documents and the technology breaks them up into groups of similar documents. The technology is calculated through the mathematical relationship between the text and context of the documents. There is an advantage with process in that similar issues can be investigated at the same time instead of reviewing different documents throughout the document review set. Predictive coding or document prioritisation technology again is particularly useful in the document review process and may produce accurate results especially when there are large volumes. An initial document set can be reviewed by someone knowledgeable about the matter. This person or group will be the lawyer(s) conducting the initial review, thus assisting in making a more informed, consistent and accurate review of information. The same irrelevancy calls are then carried forward to the remainder of the document set based on the results of the sample set. The software then prioritises or ranks the remainder of the documents based on the decisions made on the same documents which allows the most relevant documents to be identified first. An important feature is that the initial review must be carried out by someone with an intimate knowledge of the case at hand. Many emails contain earlier message and are constructed in the form of a thread or a chain. As the majority of information for discovery purposes comprise as email, email threading technology is essential to respond to the problems caused by these chains. By identifying the end point of the email chain, redundant emails do not have to be reviewed. Again the benefit of the technology is in the review exercise where parties can focus on the entirety of the email exchange instead of coming across many duplicated parts of the same exchange. The technology allows for parties to move through emails more quickly and allows for accurate assessment if they focus upon the email exchange in its entirety. Near duplicate identification is not mentioned in the particular methods and strategy section in clause 3(2)(a)(ii) of the check list but it is an important method to assist in proving the costs and accuracy of the document review. Near duplicate technology identifies documents that have similar content although not an exact duplicate. The technology groups all of the near duplicates together so they can be reviewed at the same time allowing the reviewer to quickly focus on the differences and move through the documents more quickly and accurately. Email threading and near duplicate technology can be used on paper documents as well as e-documents. However the accuracy of the paper documents
16

will depend upon the quality of the text searchable content or OCR (optical character recognition) when the document is scanned. Finally native file review allows lawyers to view documents in the format in which they were intended to be viewed. Spreadsheets and databases for example may only be able to be accurately assessed for their native applications. This can have considerable cost saving, thus emphasising the checklist requirement of reducing the unnecessary costs of listing documents. Converting all documents to PDF prior to the document review (rather than after it) will usually add unnecessary expense to the discovery process. It will usually be more efficient to review documents in their native file format and then only convert the relevant documents to PDF for the electronic exchange of documents. The discovery check list and the listing and exchange protocol do you not, of course, stand alone. The check list in fact is part and parcel of the preparation for the first case management conference (HCR 8.11). Judicial Involvement I have gone into some detail about principles that lie behind new discovery regimes and the issue of electronic discovery and some of the techniques and tools that are available because I want to provide a context for what I consider should be a higher level of judicial involvement in the E-Discovery process than merely hearing arguments and making a decision from time to time. Because of the requirements of reasonableness and proportionality, and because EDiscovery is a process that goes through a number of stages, judicial involvement is important in ensuring that the parties remain on the road. If they should depart from the established procedures it may well be difficult for a judge to require them to roll back to a particular point. Thus judicial superintendence and discipline will assist in keeping the parties and the process focussed. The Rationale for Active Judicial Involvement The central issue in almost all discovery management is the determination of scope. A common theme of all the discovery rules is securing the just, speedy, and inexpensive determination of the case In a recent article published by the University of Kansas Law Review, Professor Steven Gensler and Judge Lee Rosenthal argue that many of the eDiscovery challenges facing lawyers and litigants could be addressed in a more efficient and cost-effective manner through active case management by judges. According to Professor Gensler and Judge Rosenthal, a meaningful Federal Rules Rule 16 conference with counsel can enable the court to ensure that the lawyers and parties have paid appropriate attention to planning for electronic discovery. 20 In the United States a reference in the Rules to the administration of proceedings has been construed to recognize an affirmative duty of the court to exercise the authority conferred by the rules to ensure that civil litigation is resolved not only fairly, but also
Steven Gensler and Judge Lee Rosenthal The Re_Appearing Judge [2013] 62 University of Kansas LR 849, 858-9. 17
20

without undue cost or delay. As officers of the court, counsel share this responsibility with the judge to whom the case is assigned. Thus, in the United States the reference to administer is designed to enable judges to elicit better cooperation when the lawyers and parties fall short. Indeed, such a reference, when coupled with the stop and think certification requirement from Federal Rule 26(g), should give judges more than enough procedural basis to remind counsel and clients of their duty to conduct discovery in a cooperative and cost effective manner. To facilitate efficient and cost-effective discovery, judges must require lawyers to take their obligations to meet, confer and co-operate seriously and to submit a meaningful discovery plan at the case conference that addresses ESI issues likely to arise in the case. In New Zealand the goal is for there to be a consent memorandum. If there is not, there has to be an explanation why. In this way, the judge may well be able to identify a potential dispute and defuse it at case conference level, rather than at a full hearing. Things Judges Should Do a) Judges should encourage parties to narrowly target requests for ESI. b) Judges should evaluate whether the costs of complying with the requests are proportional to the benefit of complying. With this in mind, judges may i) need to impose limits on discovery; ii) encourage or order standard, tailored or staged discovery; iii) encourage or order sampling to determine the relevance, need, and cost of more expansive discovery; or iv) shift costs from the producing party to the requesting party, particularly when information that is not reasonably accessible must be produced. c) Judges need to help ensure that ESI is produced in a usable form, and they may need to clarify the procedures to be followed if privileged or protected information is inadvertently disclosed. d) Judges should help parties balance the need to preserve relevant evidence with the need to continue routine computer operations critical to a partys activities, and enter preservation orders as appropriate. In the end, judges a) must actively manage electronic discovery, b) raise points for consideration by parties rather than waiting for parties to present disputes that can delay a case, add to its costs, and distract from its merits. Such active management can help ensure the expeditious and fair conduct of discovery involving ESI. Effective case management lets judges work to devise practical solutions to pressing problems and to shape cases toward pre-trial preparation that is reasonable and proportional to what each case requires. I shall give a more focussed example of judicial activity in the in the context Early Case Assessment phase of the E-Discovery process below.
18

Judicial Education and Technological Awareness As well as active judicial involvement in the discovery process there must be a judiciary or a cadre of judges who are informed and educated as to the technological aspects of ESI and EDiscovery. To effectively manage discovery issues, judges must understand the relevant technology at a level that allows effective communication with attorneys, parties, and experts. As important as judicial education in new technologies is that of counsel education. If lawyers do not get a handle on E-Discovery and ESI issues early in the case, or do not manage E-Discovery processes well, the consequences can be disastrous to the client and counsel.21 Handling Disputes Armed with the powers that are provided in the new Rules of Practice Directions, assisted by checklists and questionnaires and with a good working knowledge of the various technologies and technological solutions that are available and Judge is equipped to deal with concerns that the parties to litigation may have about the scope, extent or methodology of E-Discovery. Because of the powers that Judges have to manage the process of discovery, dispute resolution need not be confined to the Courtroom but may take place at Case Conference level a careful, surgical and penetrating enquiry by the judge into the various steps that counsel may or may not have taken to fulfil their obligations, all conducted against the backdrop of reasonableness and proportionality. E-Discovery Reference Model The following E-Discovery Reference Model illustrates some of the main stages where careful inquiry may avoid unnecessary, expensive and time consuming Court hearings. It could help Judges identify where errors may be taking place in the discovery process and why it is that disputes are arising. It increases judicial awareness of what process the lawyers should undertake in E-Discovery

See Re Fannie Mae Litigation No.08-5014(D.C.D.C2009) discussed in Gene Albert E-Discovery: How to Do it http://www.lexbe.com/hp/litilawhosted/ediscoveryWrong (and Right!) how%20to%20do%20it%20wrong%20(and%20right).pdf (last accessed 7 August 2013).
21

19

An Explanation of the Stages It may be seen that as the stages progress, the volume of ESI diminishes and its relevance to the case increases. In many respects this phased process reflects some of the phases in the New Zealand Discovery checklist and the English Questionnaire 1. Information Management the evaluation of how records management programs impact electronic records and E-Discovery 2. Identification the process of learning the location of all data which is subject to the duty to preserve or potentially disclose in pending or prospective litigation Preservation\Collection 3. Duty to preserve arises when a party reasonably foresees that information may be relevant to pending or anticipated litigation 4. Data collection the acquisition of electronic information (data) Electronic information should be collected in a manner that is comprehensive, maintains content integrity and preserves form Processing\Review\Analysis 5. Electronic Discovery Processing designed to accommodate a wide variety of unstructured data, handle each form in a manner appropriate to its file type and generate output that is structured in accordance with review requirements that often vary with law firm practices, client needs and review technology provider specifications. 6. Document Review used to identify responsive documents to produce and privileged documents to withhold. Improvements in data storage, database and search technology , and online review functionality are providing increasingly efficient options for handling the volume of data and streamlining the review process. 7. Analysis process of evaluating a collection of electronic discovery materials to determine relevant summary information, such as the key topics of the case,
20

important people, specific vocabulary and jargon (which can vary significantly between and even within companies) and important individual documents. Analysis is performed throughout the remainder of the process as new information is uncovered and issues of the case evolve. Good technology and techniques are essential to effective analysis. 8. Production the delivery of responsive, non-privileged documents to opposing counsel. R. 26(f) sets an expectation that the method and format by which e-data are to be produced should be considered and negotiated by the parties early in the discovery process. Judicial Approaches to Stages in the E-Discovery Process To analyse and consider all the aspects of E-Discovery and the technological solutions available is well beyond the scope of this paper. Rather I want to examine three areas where Judges can avoid, manage or decide on disputes and how technology can assist. These areas are Early Case Assessment, Document Custodians and Aspects of Keyword Searching. I will close this section with a summary of a possible agenda for a Case Management Conference. I hasten to emphasise that the technologies discussed are not necessarily endorsed and are used for illustrative purposes only. There are many E-Discovery technologies available on the market and address different aspects of the process. While it is not necessary for Judges to be aware of specific brands, there must be an awareness of the technological concepts, process and science that underpins the various products. 1. Early Case Assessment The process of coming to grips with the discovery implications of a case early is sometimes called 'early case assessment' (ECA). As part of the early case assessment process, counsel will identify what discovery is needed, identify key witnesses and data custodians, construct factual timelines and determine the strengths and weaknesses of the case. In the United States such assessment is done in the first 60-120 days of a case and communicated in various forms with the client, opposing counsel and the judge. The objective of this proactive approach is to a) b) c) d) develop an early strategy for the case, realistically evaluate the case, determine the cost and budget to prosecute or defend, and identify business practices that might be modified to minimize litigation exposure in the future.

21

Early means (in addition to its more generally accepted meanings) any point at which a partys decision-making will radically affect the scale and cost of what you do later that is, it ought to be a continuous process in which early means not too late. 22 Chris Dale considers that ECA is an intellectual task rather than a technological one. [W]e see too much plodding from A to B without application of mind to the objective of clients or courts. E-Discovery is not a specialist science it may involve new skills, but it is no more (and no less) than the discovery of evidence required by the rules. 23 Every consideration of E-Discovery must be achieved through the Rules and must accord with legal principle. At the same time there are occasions when technology is of considerable assistance in the ECA phase of a proceeding. Early Case Assessment Technologies Early Case Assessment is less about categorization and more about search. Not all documents need to be classified and categorized as part of a disclosure process; a party only needs to find the relevant documents to justify its case and reach a favourable settlement. The problem is that a party does not always know which words or issues to look for. ECA tools quickly gather, de-duplicate and search ESI as a first pass to provide and early analysis of the amount and content of ESI. A party does not need to classify all documents or reduce the document set, but can just focus on finding the relevant documents and analyze these. With the right search tools, a party can ignore the rest at least for the time being. Forensic-based approaches to E-Discovery may provide the ability to conduct advanced searches for relevant ESI before collection allowing counsel to conduct a focussed early case assessment. With a proper ECA counsel may preview the available evidence, analyze merits of the case, develop a strategy and effectively negotiate search criteria with opposing counsel during the meet and confer process, thus fulfilling the objective of effective co-operation and discussion. Key criteria for an ECA solution include the potential to: 1. Gain insight and understanding of potential keywords, volumes of data and costs to eliminate the collection and processing of non-relevant data. 2. Test search criteria and analyze document responsiveness before data is collected.

22

Chris Dale Digital Reef Panel at the Masters Conference Early Case Assessment: is it working? E-Disclosure Information Project 30 October 2011 http://chrisdale.wordpress.com/2011/10/30/digital-reef-panel-at-themasters-conference-%E2%80%93-early-case-assessment-is-it-working/ (last accessed 7 August 2011). 23 Ibid. 22

3. Identify custodians with potentially relevant data that should get a legal hold notice. 4. Formulate a comprehensive case strategy and ensure business processes are minimally disrupted. 5. Identify potentially relevant data sources and get metrics on potentially relevant data versus total data volume. 6. Sample and test search criteria and privilege criteria before data is produced to opposing counsel.24

Having access to this data as soon as possible can enable litigants to make informed decisions about case progress at the earliest stages of a case, reducing risk and cost across their eDiscovery processes before investing significant time and money into the matter. There are many aspects and levels of sophistication in the tools that are available for ECA. Once again, issues of reasonableness and proportionality will come to the fore. For example some ECA technologies perform data analytics and generate reports that show custodian names, date ranges, email domains, key concepts and other insights into a large data set. The data analysis and reports can be used by counsel to make decisions regarding next steps for their case. Predictive Coding technologies are designed to provide a faster way to separate potentially responsive from non-responsive documents by applying document review decisions made on a subset of documents across a larger data set. On the surface, data analytics and predictive coding sound like they will save money and time. However there are potential problems in applying these solutions. For example, Predictive Coding technologies often save the most money and time only after clients spend a lot of money on upfront ESI processing. The elaborate data analytic reports created with Early Case Assessment technologies are usually available only after the data has been processed at a high per GB rate. Predictive Coding works best if litigants skip traditional culling methods such as keyword searching and date range filtering that might shrink the data set prior to higher cost processes. Because Predictive Coding costs are typically calculated based on the size of the data set, skipping the data culling steps will keep the data set large and the processing costs high. The size and composition of data sets involved in litigation can often be a reliable indicator of the time and monetary risk involved in defending or settling the case. Most ECA software now works on the model of significantly reduced rates to ingest data into their ECA platform. Inside that platform you can then learn what is there, but then look to cull and filter information to get down to the information you really want, thus reducing
24

Patrick Zeller Early case assessment What you dont know can (and likely will) hurt you Inside Counsel 12 August 2011 http://www.insidecounsel.com/2011/08/12/technology-early-case-assessment-what-you-dontkn?t=technology&page=2 (last accessed 7 August 2013). 23

the GB rates significantly going forward. To reduce Predictive Coding costs, just the 'text' from files can be used to reduce the per GB rate of having to process the full size of the files - this can considerable reduce costs. The important point is that in coming to an E-Discovery dispute a judge is going to have to be aware of the various technologies that may be available for ECA and evaluate a partys compliance, taking into account reasonableness and proportionality. 2. Document Custodians 25 An aspect of the Digital Paradigm is that information may be spread across a number of locations and upon hundreds of devices in an organisation. The larger the organisation, the greater the level of complexity in ascertaining who has what. An important part of the answer to this problem lies in a proper and effective document management system within an organisation. An ESI Content Map is a report of an organization's electronic data sources for use as a litigation management tool and may address differing approaches to document management in an organisation. It will include the names of custodians, the type of information included, backup policy, location and other information helpful in determining if a repository is reasonably accessible for legal purposes. The map should include understandable information that counsel needs to competently identify, preserve and collect ESI required for discovery related to litigation or a governmental investigation. Additionally, a well-maintained ESI content map can help counsel demonstrate that a company has been proactive regarding its discovery obligations.

I am grateful to Gene Albert and his very helpful paper E-Discovery: How to Do it Wrong (and Right!) see above n. 21. 24

25

Discovery Volume An important part of early case assessment is to determine how much potentially discoverable ESI exists, how much is reasonably assessable, and the volume of page equivalents to deal with once a review begins. Attorney review costs are primarily page and document driven. A surprising number of page equivalents can exist on drives and storage media like CDs, DVDs and flash drives.

An increasingly popular technique is to do a quick analysis of what is in an ESI collection. As mentioned above, it is critical to understand early on in an E-Discovery project how much work must be done to be able to properly staff and construct accurate project timelines. Clients also require budget estimates and need to be able to make review decisions, and determine whether and how to proceed with litigation, with overall costs in mind.

25

Raw or partially processed ESI can be analyzed relatively inexpensively (compared with full ESI processing) to obtain the following information early in the process as a 'Quick ESI Analysis": What is the approximate distribution of file types in the data collection? What is the approximate distribution of file dates in the collection? Discovery productions are often limited by file creation dates and this can show how the data collected will be reduced by date limitations. What persons are identified as authors in the files (from email and file metadata)? This shows if the collection identifies custodians that have not previously been identified, of if previously suggests custodians are represented in the data collected to date. How many pages are likely to be converted from the data collected?

3. Keyword Searching Like all technologies, keyword searching has it place and purpose in the overall scheme of EDiscovery. A court should look carefully at whether keyword searching, particularly in big cases, is appropriate and whether more sophisticated techniques and software should be used. Judges should not decide on keywords without evidence of the number of hits particular terms throw up.26

26

See William A. Gross Constr. Assocs.. Inc. v. American Mfrs. Mut. Ins. Co. (No. 07 Civ. 10639, 2009 WL 724954 (S.D.N.Y. March 19, 2009)). 26

The UK Practice Direction warns against the dangers of keyword searching. In 10 Key EDiscovery Issues in 2011 27 David Lender and Magistrate Judge Andrew Peck observed: Following on decisions by Magistrate Judges Facciola and Grimm, Judge Pecks decision in William A. Gross Construction Assoc. v. American Manufacturers Mutual Ins. Co., 256 F.R.D. 134, 134, 136 (S.D.N.Y. 2009) (Peck, M.J.), constituted a wake up call to the Bar, as follows: This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or keywords to be used to produce emails or other electronically stored information (ESI) Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESIs custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of false positives. It is time that the Bar even those lawyers who did not come of age in the computer era understand this. Even if the steps suggested in the William A. Gross decision are followed, keyword searching will produce less than 50% of responsive ESI. There are more sophisticated search tools available, such as clustering and concept searching techniques instead of or in combination with keyword searches that may be considered. We are not aware of any published judicial decision addressing these tools With this strong caution in mind, keyword searches may still be helpful, especially at the ECA phase of litigation. How can a party go about doing better than just brainstorming keyword terms? A mixed approach should be undertaken, sampling and testing returns for different proposed search criteria. This provides a quantitative approach to estimate how many documents will be returned with different keywords. The next step is to take a sample of the returned disputed keywords and determine, through manual review, the percentage of relevant documents brought back with the search. This approach involves the construction of superior search keywords through an iterative methodology of keyword searches on a representative sample and then manual review of returned documents from the sample to develop an expanded list of keywords. An approach like this helps to give magistrates and judges a better basis to include or exclude disputed search terms. In William A. Gross Constr. Assocs.. Inc. v. American Mfrs. Mut. Ins. Co. 28 the magistrate judge complained that he was in the "uncomfortable position" of having to construct a
27 28

Above n. 14. Above n. 27 27

search term methodology without sufficient input from the parties or the relevant custodian. He ruled that in addition to DASNY's proposed terms, the search should incorporate the names of the parties' personnel involved in the courthouse project, but rejected a much expanded keyword list without more justification. He criticized the parties search term methodology as "just the latest example of lawyers designing keyword searches in the dark." All keyword searches are not of like quality. Judge Paul Grimm recently wrote "while it is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review." 29 Keywords are often negotiated very early in the case. But as the case evolves new issues and keywords inevitably will be identified. As this will involve more expense for the responding party, going back and negotiating more keywords may be difficult. Before allowing this without consent a court may want to know why proposed keyword additions were not identified earlier. This supports the importance of the iterative process of sampling and an early case assessment to understand the case issues and potential case keywords as early as possible. "[F]or lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence." 30 This thinking suggests that there may need to be greater use of experts in the area of keyword validation and the resulting Daubert challenges as part of cases involving disputed E-Discovery methodology. Thus we have a situation where rather than reducing disputed hearings arguments about keyword searches, the construction of a keyword search becomes a specific form of dispute. This results in Court ordered keyword search parameters based on expert evidence of a highly technological nature. The only input from the parties is from an adversarial position and although the result may well be a compromise it may still not achieve the ultimate goal of locating relevant documents within the reasonable and proportional requirements. Indeed, one wonders whether, in light of other more defined search techniques, an evidence based dispute about the parameters or definitions of a keyword search may indeed be reasonable and proportionate. The rules require a co-operative approach by counsel and this should be
29 30

Victor Stanley. Inc. v. Creative Pipe. Inc.. 250 F.R.D. at 251, 256-57(D. Md. 2008) United States v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) 28

encouraged at Conference level rather than allowing the matter to escalate to a hearing about the parameters of a keyword search.

Agenda Items for a Case Conference Early party agreements on E-Discovery issues are an essential element of all E-Discovery systems under consideration in this paper. This starts with the co-operative meet and confer requirements and extending to the discovery plan, the consent memorandum relating to discovery or, in the US, the discussion with the Court at the Rule 16 Conference. Courts are expected, and in my view are obliged, to facilitate agreements and manage and resolve discovery disputes involving ESI where needed. Resolution is much more effectively achieved at the case conference level that embarking upon a hearing which may have the effect of stalling the proceedings. 31 Parties are often unable to agree on meaningful E-Discovery arrangements at an early stage. This is where early case assessment comes in and where early judicial management can be an advantage.

In the US Rule 16(b), as amended, speaks of reviewing any issues about disclosure or discovery of [ESI] and courts have ordered parties to engage in cooperative discussion to facilitate a logical discovery flow to ensure that discovery is proportional to the specific circumstances of [a] case.

31

29

Other Case Management Topics for Discussion Topics can include some or all of the following, depending on the case: Scope and extent of ESI anticipated to be sought Steps to preserve potentially relevant information Anticipated numbers of custodians and sources other than active data Identification of inaccessible sources Search methodology The form or forms to be used for production Privilege logs Plans for managing post-production claims Timing (including phasing) of discovery

This is addressed in England and New Zealand by the Questionnaire/Checklist and in New Zealand Courts expect party agreements on key issues. The prime directive lies in The Sedona Principles which urge parties and their counsel to address the matter by cooperative efforts, as reinforced by the Sedona Conference Cooperation Proclamation, which challenges parties to adopt a culture of cooperation in discovery.32 Conclusion The court has a role to play in assisting parties with the discovery exercise. The court is in a good position to stand back and take a non-partisan view of what is reasonable and proportionate. Its role is to help the parties frame a reasonable and proportionate search and if necessary rule on it. In order to do this the court needs to be asking questions about the date range of the issues, who the key custodians of documents are, what sort of documents or media are the most important, how accessible the documents are, and how much will it cost to get at those that are not readily accessible. The key stages in the disclosure process where the parties are most likely to seek the courts guidance in resolving a particular dispute are as follows: 1. Less is more where the party with the most to disclose is require to disclose as much as possible by the party who has the least to disclose. Master Whitaker suggests a staged approach and a narrowing of the search as much as possible after considering the component parts of the search regime. 33 2. Agree upon a search methodology this is where aspects of an understanding of the technology by judges and lawyers comes to the fore. It is at this stage that there will possibly be disputes about keywords or whether more sophisticated search methods like predictive coding should be used.

32

Sedona Conference Co-Operation Proclamation July 2008 https://thesedonaconference.org/cooperationproclamation (last accessed 10 August 2013) 33 Steven Whitaker International Developments in E-Discovery above n.10. 30

3. In considering what technology should be used, the issue of whether a particular method is reasonable and proportionate and whether review should be restricted to a corpus of documents When it comes to a hearing the enquiry must be limited and focussed. A careful and critical analysis of the issues raised by the pleadings must be the first port of call for the judge in considering what discovery orders should be made. Two recent decisions of Asher J in New Zealand 34 emphasise the importance of a disciplined and focussed approach by both judge and counsel. Although the cases do not involve E-Discovery technologies the focussed approach on issues raised by the pleadings informed by the fundamental principles of reasonableness and proportionality makes it clear how discovery disputes should be handled. The nature of information in the Digital Paradigm forces use to approach discovery in a paradigmatically different way from what went before. The Rules of Court provide a framework within which discovery may take place. The Rules reflect the need for flexibility of approach. Given the importance of co-operation and consultation, reasonableness and proportionality and the requirements for case management conferences and judicial supervision this paper has argued that there is a greater need for judicial activism throughout the discovery process. No longer can Judges consider themselves to be like cuckoos in a clock, popping out to deliver a decision and then retiring to await the next dispute. In a time of paradigmatic change, judicial behaviour must itself be paradigmatically different. There is scope for this within the various rule systems for E-Discovery. It is up to Judges to grasp the opportunity and become involved at all stages of the process in an active, creative and purposeful manner.

Intercity Group (NZ) Limited v Nakedbus NZ Limited 2013 NZHC 1054; Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726. The same same staged and rigorous analysis was adopted by Master Whitaker in Goodale v Ministry of Justice [2009] EWHC B41 (QB)
34

31