Remote Forensics May Bring the Next Sea Change in E-discovery: Are All Networked Computers Now Readily Accessible Under the Revised Federal Rules of Civil Procedure?

The recent amendments to Rule 26 of the Federal Rules of Civil Procedure created a two-tiered approach to discovery of electronically stored information (“ESI”). Responding parties must produce ESI that is relevant, not subject to privilege, and reasonably accessible. However, because some methods of storing ESI, such as on magnetic backup tapes and within enormous databases, require substantial cost to access and search their contents, the rules permit parties to designate those repositories as “not reasonably accessible” because of undue burden or cost. But even despite the difficulty in searching for ESI, the party’s duty to preserve potentially responsive evidence remains; it simply gains the option to forgo poring over the material. Further, the court might nevertheless compel production if the requesting party demonstrates good cause. Regardless of whether the responding party believes certain documents to be reasonably accessible or not, courts may still require their production. In such cases, the court may then choose to order production, but shift the costs of doing so to the requesting party. Throughout this process, the burden and cost of production are central themes. Their determination is fluid, varying from case to case and even over time in the same situation. Nowhere is this more evident than where a responding party has numerous, geographically dispersed computers under its control that may contain responsive ESI to a request for production of documents. Traditionally, a responding party would be forced to make a decision of whether or not to send out computer forensic experts to all of these locations to make forensically sound copies of all of those computers and then analyze each. This process is time consuming and costly. Recently, several companies have put forth substantial solutions that facially allow a responding party to capture and analyze data on geographically dispersed computers remotely. That process, in general, is often defined as remote forensics. The question is now whether newly available remote forensic solution indicate that all networked computers are readily accessible under the current state of the law. This article attempts to define remote forensics, examines a selection of applicable court decisions, and then analyzes the currently available commercial software packages that allow remote forensics

Merger and Acquisition Due Diligence Part II- The Devil in the Details

Our prior scholarship examined the legal and technical challenges involved in modern Merger & Acquisition ( M&A ) due diligence practices associated with transactions ( Deals ), given recent but steady advances in technology and related increases in sophistication seen in Deal participants-primarily the organizations or assets targeted (the Targets ) as part of the Deal, and the organizations that pursued and/or resulted from the Deal (the Acquirers ). We then proposed a framework addressing five particular verticals of interest and concern: data privacy ( DP ), information security ( IS ), e-Discovery, information governance ( IG ), and the due diligence and record keeping associated with the Deal itself ( Deal Information ) (collectively, the Framework )

The Intersection of Robotic Process Automation and Lean Six Sigma Applied to Unstructured Data

While new Artificial Intelligence (AI) technologies gain traction in the workplace, there seems to be more buzz around these newer advances, including Robotic Process Automation (RPA), than more established process improvement techniques such as Lean Six Sigma. This praxis research uses Lean Six Sigma as a framework for effectively deploying these emerging technologies, a challenge for 86% of companies (Ernst & Young, 2021). This research is applied to one of the legal industry’s most resource intensive processes – eDiscovery in the environment of a Big 4 accounting firm that provides services to corporations and legal professionals alike. Electronic discovery (also known as e-discovery, ediscovery, eDiscovery, or e-Discovery) is the process of identifying, collecting, producing, and presenting electronically stored information (ESI) in response to a request for production in a law suit or investigation. ESI can include any type of electronically stored file and commonly includes emails, documents, databases, media files, social media, and web sites. The lifecycle of eDiscovery has been defined by the Electronic Discovery Reference Model (EDRM) as having the following phases: Information Governance, Identification, Preservation. Collection, Processing, Review, Analysis, Production, and Presentation. To move through the phases of the EDRM historically requires a significant investment in time, technology, and human resources. This project had its origins as an automation effort driven by the technical advances in RPA solutions. However, RPA became a tool for to enable the program – not the solution itself. The DMAIC framework (Define, Measure, Analyze, Improve, Control) of Lean Six Sigma laid the foundation for a more wholistic analysis of the EDRM including the identification of processes that required revision prior to their automation. The Define phase identified the resource intensive strain moving through the EDRM causes corporations, vendors, and litigators. Through the measure phase, an opportunity to provide better results faster, and therefore cheaper was quickly identified. Through the analysis, several unnecessary handoffs, extraneous processes, and general bottlenecks in the process were refined. Through the Improve phase, automation played a significant part in realizing the efficiencies identified in the analyze phase. Finally, the controls phase not only put these improved processes into place but also quantified the value of ensuring these procedures were thoroughly deployed. This research is organized using the DMAIC framework to articulate the process for completing the research, the gains and efficiencies made throughout the analysis, and to measure the impact and success of the overall program enhancements. The impact of this project is measurable not only in the reduction of defects as defined by Lean Six Sigma, but also a significant improvement in time required to complete these processes. Even more satisfying, these efficiencies have a measurable, financial impact that has currently been realized north of $5 million USD in one year alone. This impact led to the solution becoming a finalist for an industry award where it was presented to over 3,000 industry professionals. Furthermore, the reduction and automation of manual, tedious tasks have also led to more enriching work for resources

How to Use Litigation Technology to Prepare & Present Your Case at Trial October 27, 2021

Meeting proceedings of a seminar by the same name, held October 27, 2021

SENTIMENT AND BEHAVIORAL ANALYSIS IN EDISCOVERY

A suspect or person-of-interest during legal case review or forensic evidence review can exhibit signs of their individual personality through the digital evidence collected for the case. Such personality traits of interest can be analytically harvested for case investigators or case reviewers. However, manual review of evidence for such flags can take time and contribute to increased costs. This study focuses on certain use-case scenarios of behavior and sentiment analysis as a critical requirement for a legal case’s success. This study aims to quicken the review and analysis phase and offers a software prototype as a proof-of-concept. The study starts with the build and storage of Electronic Stored Information (ESI) datasets for three separate fictitious legal cases using publicly available data such as emails, Facebook posts, tweets, text messages and a few custom MS Word documents. The next step of this study leverages statistical algorithms and automation to propose approaches towards identifying human sentiments, behavior such as, evidence of financial fraud behavior, and evidence of sexual harassment behavior of a suspect or person-of-interest from the case ESI. The last stage of the study automates these approaches via a custom software and presents a user interface for eDiscovery teams and digital forensic investigators