E-Discovery
Recent judicial rulings require all parties to be increasingly better prepared
for e-discovery. Practices that were previously commonly accepted may no longer
be defensible.
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The theme is common among court rulings that increasingly clarify e‑discovery requirements: Parties involved in e‑discovery must become better prepared than ever before to identify, manage, and measure relevant information from large, complex volumes of electronically stored information (ESI). These expectations apply not only to the parties involved directly in a lawsuit but, equally importantly, to the consultants and vendors those parties retain.
Many of the processes that remain commonplace (such as keyword culling) may no longer be defensible. Judge Facciola advises in United States v. O'Keefe that using keywords as a means of reducing ESI volume is "truly to go where angels fear to tread." He has also suggested that litigants take a good look at more advanced search methodologies, including the use of computational linguistics and technology assisted review. Judge Grimm determined in Victor Stanley v. Creative Pipe that no credible evidence was presented to establish reasonable search efforts. "Common sense suggests," he said, "that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive...the only prudent way to test the reliability of the keyword search is to perform some appropriate sampling." Counsel must deal appropriately with ESI evidentiary issues
Not only have basic search methodologies come into question, but evidentiary concerns associated with the admissibility of ESI have arisen as well. Judge Grimm explains in Lorraine v. Markel American Insurance that "counsel must be prepared to recognize and appropriately deal with the evidentiary issues" associated with ESI. He warns that although ESI can frequently be identified via witness statements, hash values, or metadata, parties must be "creative in identifying methods of authenticating electronic evidence... regardless of whether there is a particular example in [FRCP] Rule 901 and 902 that neatly fits."
Although there has been a recent trend among e‑discovery professionals to develop standards and best practices for e‑discovery, e‑discovery is itself evolving faster than the trend can keep up with. The very standards and best practices that are designed to control the evolution of e‑discovery are themselves quickly being rendered obsolete. The balance of the requirements is shifting more and more towards hi-tech solutions, but the trend to standardize has managed to offer little more than linear, paper-based models to apply to e‑discovery. Indeed, many e‑discovery consultants are still recommending keyword culling (albeit with what they might consider to be appropriate caveats) instead of advanced search technologies. These models do little to advance the types of search methodologies that Judge Facciola advises, and they do not address the warnings expressed by Judge Grimm. Cataphora e‑discovery solutions
From its foundation, Cataphora has been a leader in advanced search technology to manage and measure ESI, regardless of volume or complexity. Cataphora has always used and promoted sophisticated sampling techniques to improve precision and recall. (Precision is a standard measure of how many irrelevant documents a search finds; recall measures how many relevant documents a search misses.) In addition, Cataphora has the technology and know-how to qualitatively gauge keyword effectiveness.
Cataphora has in place systems to clearly and precisely maintain forensic images, chain of custody, audit trail, and hash values of ESI for purposes of authentication. Our contextual technologies overcome the inherent limitations of content-free documents (e.g., phone records) when dealing with investigations (where there may be no smoking-gun documents, for example). Cataphora is the first and only provider to develop deep analytics (not mere data statistics or simple email widgets) that give insight into the facts expressed by the ESI dataset. True analytics can (among many other things) detect individual and organizational "heartbeats" and de facto organizational substructures, evaluate typical versus anomalous behavior, assess consistency and variation in an organization's processes, and detect patterns of data deletion. Building a confirmatory case with quality evidence
Cataphora's C-Evidence Review Platform with FlexReview™ manages and measures any volume or complexity of ESI. This empowers our clients to leverage a well-laid e‑discovery plan not only to respond to discovery requests, but also to construct a confirmatory case built upon good evidence for favorable disposition of any matter.
With FlexReview, you have the greatest flexibility in determining, at any point during the review process, which documents to review manually, and which to process using Cataphora's Technology Enhanced Review. Alternative scenarios can be evaluated for cost, speed and maximum scrutiny of particularly sensitive data. Cataphora's Analytics – and our passion for and expertise in developing new custom analytics specific to client matters – empowers our clients to prepare for all facets of litigation, including:
The best defense
Plaintiffs are equipping themselves with the best available technology for sifting through and analyzing data. The best response is to make sure you are likewise armed to mount the best possible defense. Cataphora's patented Analytics allow you to understand your data in ways that previously simply were not possible. By enabling you to ask and answer key questions about the data, our Analytics can help you plot the most effective case strategy and give you confidence that you understand exactly what you are producing to the other side.
Don't you owe it to yourself to engage Cataphora before it's too late? Contact us for more information about E-Discovery. |
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