Tips to Help You Effectively Manage ESI in Federal Court

Pamela Garman and Casey Terrell
Increasing volumes of ESI make leveraging technology essential in ensuring your ethical duties are upheld.

Increasing volumes of ESI make leveraging technology essential in ensuring your ethical duties are upheld.

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As a new associate, expect seasoned attorneys to assume that because you are young, you are good with technology, regardless of your actual technological prowess. The burden to understand the ever-evolving nature of technology—and to develop the legal practice accordingly—will often fall to you. With that burden comes ensuring you uphold your ethical obligations in understanding and utilizing technology. One area where this is particularly important is in handling the discovery of electronically stored information (ESI). Increasing volumes of ESI make leveraging technology key to addressing the associated challenges. In case it has been a year or two since you passed the MPRE, let’s review what the ABA Model Rules of Professional Conduct (MRPC) require of attorneys when it comes to technology.

Ethical Obligations

You likely remember Rule 1.1 of the MRPC, which requires attorneys to provide clients with competent representation, composed of equal parts legal knowledge, skill, thoroughness, and preparation as reasonably necessary to effectuate the representation. Although the use of technology is not explicitly addressed in Rule 1.1 itself, it is addressed in Comment [8]. Specifically, Comment [8] of Rule 1.1 requires an awareness of the risks and benefits associated with relevant technology. One risk the MRPC addresses is an attorney’s disclosure (inadvertent or otherwise) of privileged information, inadvertent or otherwise, due to improper care of ESI.

Like the duty of competence, the duty of confidentiality speaks to an attorney’s responsibility to prevent, “inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” MRPC 1.6. The duties of confidentiality and competence work in tandem to govern the ethical discovery of ESI, ensuring attorneys maintain the technological competence necessary to prevent inadvertent or unauthorized disclosure of privileged ESI.

Ultimately, utilizing technology will be increasingly integral in providing competent representation. Particularly in federal court, where much of the case law is developing, the use of technology is necessary. The sooner new technology is implemented and leveraged in your practice, the easier it will be to remain ahead of the curve.

Leveraging Technology

To leverage technology in your practice, start investigating ways to use the technological tools already available to you. It is likely your firm has a document review platform, which facilitates a review of documents from multiple programs in one platform. These review platforms utilize a near-native review that allows the reviewer to see how a document appears in its native—or original—format without individually opening each document. A near-native review is important for ensuring the native document remains unchanged and the reviewer avoids inadvertently altering its metadata. Metadata simply refers to “data about data” or the information contained in ESI that provides embedded information, like creation date, date last accessed, date last modified, author, etc. By using a near-native review platform, reviewers avoid inadvertently changing this information in the ESI. If you do not have access to a document review platform, consider suggesting that your firm implement one. Document review platforms are a great place to start and will be worth the cost.

These platforms often provide analytics or even predictive coding to assist in managing ESI. Analytics refers to the things that computers can tell you about different aspects of your documents without any human input. Analytics can be as simple as identifying duplicate or near-duplicate documents. The time saved by removing duplicate documents is obvious, but the near-duplicate identification can be even more beneficial. Near-duplicate identification will identify documents with similar content within a certain percentage of variance. For example, analytics could identify any document at least 80 percent similar to another document as a near-duplicate. The computer can recognize the similarities and group the documents together. By looking at the near-duplicate relationship, you can see how close documents are to each other, and review a redlined mockup of the changes between each document. This is helpful to see minor alterations or changes that may have occurred in different document versions that a traditional review by an attorney may have never identified.

After becoming comfortable with your document review platform, continue to implement more technology into your review process. Employing additional analytics in your review process, including email threading, concept clustering, and even concept searching can be an easy way to boost your productivity and work product. Email threading, for example, pulls together all related emails in an email chain and identifies changes from one message in the chain to the next. Reviewing all related emails at once can save time and ensure all are handled consistently. It allows the reviewer to spot patterns or inconsistencies easily. Email threading may help identify all privileged documents in a set of ESI. By grouping all emails in a chain after identifying a privileged communication, it is easier to ensure privilege is properly asserted over messages, regardless of where in the chain the privileged portions exist.

Similarly, concept clustering analyzes ESI’s text and groups together files based on comparable content. Reviewing concept clusters allows the reviewer to handle documents with similar content at one time, which can speed up the review process. Concept clustering can effectively isolate groups of clearly non-responsive documents, making it easier to eliminate them from a review set. It may reveal patterns in the content of the documents, allowing a reviewer to pinpoint the most responsive documents as early as possible in the review process.

Predictive coding, sometimes referred to as Technology Assisted Review (TAR), goes one step further and uses human input to extrapolate patterns and categorize a set of documents based on human review of a small subset. Predictive coding is perhaps the most effective and efficient method for handling large ESI review projects. TAR requires some understanding of the process on the part of the reviewer, however. Despite the common conception that manual review of documents is most effective, many forms of predictive coding are statistically more effective and accurate.

Document review platforms typically have advanced search techniques that can ensure privileged documents are identified and withheld. In addition to a basic keyword search, many platforms offer concept searching or visual searching. A concept search takes an example paragraph or document and then searches the review set for all similar documents. This is more effective than a keyword search and looks at language patterns more broadly rather than single words. A visual search graphically displays results based on chosen metadata fields. This allows for easy identification of patterns and can be used to isolate sets of privileged documents.

Ethics and ESI: A Crossroads

You, along with more seasoned members in your firm, may be wondering: Do I have to learn how to utilize this technology? Based upon the MRPC and current trends in federal courts, the answer is yes. Based on MRPC 1.1 Comment [8], as technology evolves courts will expect attorneys to maintain a baseline familiarity with the tools and processes used to review ESI. Without understanding how this technology works, including its risks and benefits, it is ethically perilous for an attorney to advise clients on eDiscovery.

This understanding of technology is necessary in determining the scope of discovery under Federal Rule of Civil Procedure 26(b)(2)(B). Federal courts are increasingly considering the benefits of technology in determining the burden or expense of proposed discovery. Opinions dating back to 2012 have made clear that technology should be implemented where it can save significant costs associated with document review and have urged attorneys to adopt appropriate processes accordingly. (See, e.g., Moore v. Publicis Groupe, 287 F.R.D. 182, 193 (S.D.N.Y. 2012)).

Attorneys are also under a duty to leverage technology in producing ESI to prevent inadvertent disclosures of privileged material under MRPC 1.6. Manually reviewing every page of a voluminous set of ESI statistically increases the chance of inadvertently producing privileged material—material otherwise identified and removed using technology. There are safeguards through claw-back agreements, but the best practice is to prevent production in the first instance. The tech-averse may have to adapt sooner rather than later when it comes to ESI to ensure compliance with professional and ethical obligations.

Moving Forward

Increasing volumes of ESI make leveraging technology essential in ensuring your ethical duties are upheld. For new attorneys, and especially the tech-averse, the key to implementing new technology is to start small. This does not mean you have to embrace all new technology, but by exploring your options and implementing additional tools over time, you will be able to leverage technology efficiently and effectively to the benefit of your practice and your clients. This is essential not only to best serve your clients but also to uphold your ethical obligations.

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Pamela Garman

Pamela Garman is an associate in the Billings, Montana, office of Crowley Fleck PLLP. 

Casey Terrell

Casey Terrell is an associate in the Sheridan, Wyoming, office of Crowley Fleck PLLP.