Category: ESI


Advanced Discovery recently held a breakfast round-table with some law firms in San Diego. The idea was to meet with people and talk about what’s bothering them instead of me just being a talking head and going on and on about what I think is important.  Because really, nobody wants to come to a 7:00 AM meeting on a Friday to hear someone else talk: if they come to this meeting the have something on their mind that they want to discuss in a forum with their peers.

I started off the discussion by putting the topics I considered to be important on a flip board and then asking the folks in the room to tell me about their pain points.  The final result is captured below and its quite interesting.

My hot topics were:

  1. Collecting Social media
  2. Keyword searching: is it really dead?
  3. TAR/CAR/automated searching (or as I call it, SkyNet)
  4. Latest changes to the FRCP

The attendees were concerned with:

  1. Proportionality and costs
  2. Collecting off mobile devices
  3. Relevancy standards in the preservation process
  4. Review problems with social media collections: how to load and review
  5. Presentation/production of evidence

My immediate impression was that while I was talking in generalities that had some overlap with the attendees topics (the new rules, social media issues)  generally the law firms were much more focused on specific issues where I was talking about broad issues. That is, they were comfortable with the framework of the discussion but were technically savvy enough that they had very specific issues within that general framework that they wanted to talk through.

Cost issues were paramount within the general heading of proportionality.  The overall feeling was there was so much data being collected that narrowing it down to a manageable data set was problematic. The new rule changes were a welcome relief in this area by bringing proportionality front and center to help control not just costs but more importantly, the ability to focus on what was most important in their cases. Moving the matters forward in an efficient manner.

My focus on keyword searches was met with some feeling of skepticism but not because they felt TAR was not a useful technology. Rather they felt it still an up and coming technology whose value had not been proven.

Their objections were at several levels:

  1. They had not seen a clear definition of what TAR was and fell that the arguments about different tools, especially CAL, were too technical to convey to clients.
  2. They had not seen reliable case studies that showed them a repeatable work flow which implemented a verifiable process that they could use.
  3. They had not seen an extended case process which saved them money in a manner that their clients would accept. Although they understood that an early use of TAR could reduce costs downstream at the review stage, the immediate costs of TAR were so high as to exclude its use if keyword searches were still fairly reliable (per Judge Pecks discussion in the Hyles matter on the standard of reasonableness)

Likewise, their focus on social media was not so much on collection.  The feeling on that was “we hire forensics experts to collect things and we trust that they know what they’re doing.” Rather, they were concerned about two other aspects of the EDRM as they applied to social media: preservation and production.  These were specific “parts of the process” concerns: how do I properly preserve a dynamic ESI source and, once I do, how do I work with it, both in a review tool and in producing it.

And finally, a real focus on the rule changes was the issue of the standards of preservation. Once again, law firms were concerned with relevancy issue and very much liked the focus on the claims of the case.  Their emphasis was on practicality and the real nuts and bolts issues of using ESI in their cases.  Although they realized and in many cases were willing to discuss the larger philosophical issues, their real concern was the matter in front of them and how best to represent their clients in handing that case.

Next week I’ll take a look at the GC point of view with a report from the Houston version of the TGC Exchange which dealt with many of the same issues.