The Role of Paralegals in Electronic Discovery

Paralegals are too often associated with the practice of discovery as it was conducted before the dawn of the electronic discovery era. Experts in the field of electronic discovery recognize that paralegals have a key role to play in production of electronic evidence, and my own experience as a litigation paralegal as shown that there’s a lot of work to be performed with ESI that lies outside of the areas litigation support groups focus on.

The EDRM’s Talent Task Matrix identifies 25 tasks that a paralegal can perform in the identification, preservation, collection, processing, production and presentation of ESI. See, http://www.edrm.net/frameworks-and-standards/talent-task-matrix/ . These tasks include documenting a defensible audit trail; ensuring metadata is collected in a legally defensible manner; and tracking media through each stage of electronic discovery. Craig Ball’s Electronic Discovery Workbook notes that the task of maintaining data maps may often fall to paralegal. See, http://www.craigball.com/Ball_E-Discovery_Workbook_Ver.%2018.0221.pdf, at 101. In Michael Quartararo’s Project Management in Electronic Discovery, he states that his aim is to apply “the established principles of project management to each phase of e-discovery, blending the roles of attorney, paralegal, and project manager into a complementary collaboration.”

After electronic discovery is completed and document images and native files have been produced, attorneys will have to work for months or years with the data before it is presented at depositions or at trial. Litigation support departments will have analysts focused on database administration and software support. A paralegal can fill an important gap between the traditional areas of litigation support and the day to day technical needs of attorneys. A data analyst assigned to litigation support may not be an expert in Excel. Digital graphics specialists hired from outside vendors may not be able to comply with demands to finalize demonstratives on short notice. An attorney may be more comfortable having a paralegal they have a good relationship in the ‘hot seat’ conducting an electronic courtroom presentation than an outside technician they will not meet until shortly before trial.

Work that is normally assigned to paralegals can be completed more quickly and accurately through the use of technology. Adobe actions can be used to automatically redact terms in PDF documents. Visual basic macros for MS Word can link exhibits cited in deposition outlines. Printers can be set to insert tabs and slip sheets automatically to cut down on the time required to assemble binders. A paralegal may be the person most familiar with technical requirements for court filings. For example, some courts require filings to be in the PDF/A archive format. It makes sense that the same person responsible for cite checking a brief will also be the one expected to know how to use the LinkBuidler add-in for MS Word developed by the United States District Courts that automatically inserts hyperlinks to other court filings.

Nearly every paralegal is asked by an attorney to run searches in document databases on a regular basis. Tracking down particular kinds of documents in an e-discovery platform such as Relativity can be made easier if the person doing the searches understands the significance of hash values, or how to structure a regular expression search.

Logging electronically stored information collected from clients and third parties is a critical part of electronic discovery. Hard drives, discs, and data posted to file share sites may be directed to paralegals first. They can run the dir command in Windows to create complete indices of the files on electronic media and prepare summaries of the content. If a paralegal must maintain logs detailing the content of document productions, they should also prepare descriptions of the kinds of information on each unit of electronic media received before productions go out.

In the field of information governance someone at a law firm needs to be aware of regulations governing electronic records. The fact that the National Association of Securities Dealers has regulations prohibiting communications with customers from home computers is not the most crucial part of securities law, but this is something a paralegal can remember for her or his lawyer. A paralegal may be asked to help a client implement a records management policy. It’s important to have someone with expertise in which laws and regulations require electronic evidence to be retained.

Attorneys focus on the law. Litigation support professionals focus on technology. Paralegals can be best positioned to focus on managing the projects of a litigation team. Paralegals routinely keep track of deadlines, and can help make sure that the processing and review of ESI stays on schedule. Paralegals can evaluate proposals from multiple vendors who compete to perform electronic discovery assignments. Contract management software can be used to track existing agreements to provide e-discovery services. In the Electronic Discovery Institute’s course on Budgeting and Project Management, Elizabeth Jaworski, the director of legal operations at Motorola, recommended the use of a RASCI chart to monitor who is Responsible, who is Accountable, who is assigned to Support others, who must be Consulted, and who should be Informed. I’ve used this approach with success directing projects at my firm.

Expanding the role of paralegals to cover technical tasks overlooked by litigation support professionals and project management approaches ignored by attorneys can help a firm serve its clients more effectively.

Ball on Discovery from Mobile Devices

This past October, Craig Ball, an electronic discovery special master and a professor at the University of Texas at Austin, published a succinct guide to electronic discovery from mobile devices, Mobile to the Mainstream. Here's an even more succinct summary of the guide.

The average user of a smartphone spends 4 hours on the device each day. Two-thirds of all emails are sent using phones. Ball criticizes lawyers for treating mobile phones as devices that are only used for making phone calls. Smartphones do not necessarily need to receive special forensic reviews. Only active data should be collected, not latent artifacts. A cheap tool can be used to collect documents, spreadsheets, and presentations from mobile phones. Photos and videos can be collected with ease. Photos will be stored on most mobile devices in High Efficiency Image File Format. This files will have an .heic extension. Many e-discovery tools can't support this format.

Text messages are used for digital communications more frequently than emails. Unless the default setting is changed, an iPhone will keep its text messages indefinitely. Exporting messages and their attachments is not burdensome. The encoding should be changed to Unicode UTF-8 to capture emojis. An iPhone's call history and voicemail metadata can also be easily exported. Mobile calendar data is easier to export and redact than the same type of data found in .pst archives.

Data from apps can be stored as JSON, PLIST and SQLITE files. Geolocation data may be difficult to collect and review even if a user can access it easily. Federal law requires phones to broadcast their location in order to facilitate responses to emergency calls. Apple protects geolocation data and won't allow for a bulk export of the data. This data is also not backed up or stored in iCloud.

Ball has not been able to find a forensic tool that can collect data from multiple images of multiple smartphone simultaneously. He has used a $50 tool called iMazing effectively in mobile e-discovery. His mobile discovery scorecard tracks the difficulty of collecting and reviewing different types of evidence, and its potential relevance.

Study on Linear Review vs. TAR

In 2010 the American Society for Information Science and Technology published a study of efficacy of the 'machine categorization'. See, Herbert L. Roitblat, Anne Kershaw, and Patrick Oot, Document Categorization in Legal Electronic Discovery:Computer Classification vs. Manual Review, 61(1) J. Assoc. Inf. Sci. Technol. 70–80 (2010). The study compared the results of a document review performed by 225 attorneys in response to a Second Request from the Department of Justice under the Hart-Scott-Rodino Act (concerning an investigation of the acquisition of MCI by Verizon) with the results of automated categorization performed by two e-discovery vendors.

225 attorneys performed the initial review in two teams - one looking for privileged documents and the other looking for relevant documents. Two re-review groups (Teams A & B) both reviewed the same 5,000 documents in order to create seed sets for two different e-discovery vendors, one based in California and the other in Texas. The vendors operated without knowledge of the other's results. The data consisted of 2.3 million documents totaling 1.3 TB that were collected from 83 custodians. Only 1.6 million documents remained after duplicates were eliminated. The original team of attorneys took 4 months to identify 176,000 documents for production. The cost of the review was $13.5 million.

This table compares the coherence between the various studies. [Apparently there's a typo and the last row should refer to 'Original v. System D']. A Verizon attorney, Patrick Oot, one of the authors of the study, 'adjudicated' decisions made by the reviewers for the seed sets deciding which one was right when they disagreed. The confirmation by this subject matter expert lends credence to the finding that in the set of 5,000 the original team missed 739 relevant documents.

The results show that computer assisted review performed by the vendors (System C and System D) marked large numbers of documents as responsive which the original team of 225 attorneys found to be non-responsive - about 200K by both systems. They also found that about half of the documents produced after the original review were non-responsive.

There was more likely to be agreement between the teams on which documents were non-responsive than as to which were responsive.

The levels of precision and recall for the systems used by the vendors were relatively low, but the study concluded that the automated review systems yielded results at least as good as those of the human review team.