Get Off of My I-Cloud: Role of Technology in Construction

PracticeSanjay Kurian, Esq.

Trent Walton, CTO U.S. Legal Support

A Story

The Attorney’s Technical Concerns at Trial/Arbitration/Mediation

• Use of photographs, video and documents • Use of demonstratives• Admissibility issues• Courtroom limitations

Challenges for the Construction Lawyer

• Learning curve and initial investment• Dynamics of technology evolution –

(un)planned obsolescence• Different levels of experience of clients and

other parties• Emerging trends in technology • Evidentiary issues• Different levels of experience of tribunals

The Attorney’s Technical Concerns

• Providing Documents to the experts• The “Cloud”• Discoverability of the cloud• Electronic Discovery Planning

– Client Documents– Opposing party

The Attorney’s Technical Concerns at Trial/Arbitration/Mediation

• Use of photographs and documents • Use of demonstratives• Admissibility issues• Courtroom limitations

Developments in eDiscovery• Acceptance of Technology Assisted Review• Acceptance of Social Media Discovery• Acceptance of Cloud Computing and Storage• The American Bar Association Passed New Model

Ethics Rules Regarding Technology

Goals of eDiscovery• Fulfill Preservation Obligations• Get the Evidence Needed• Integrate into Legal Strategy• Manage & Predict Costs• Reduce Volume

EDD v. Forensic Analysis

• EDD (Electronic Data Discovery)– Document oriented– Generally large numbers of Pages– Goal is attorney review

• Forensic Analysis– Usage oriented– What happened on the computer (deletions,

copying, modifications)– Timelines are critical

Case Strategy

• Find the Data!• Litigation holds• Definitions• Interrogatories• Discovery requests• Protocols• ESI Discovery Calendar

Where Could the data be?

• Computers• Servers• Mobile Phones• Social Media and Web Sites• Cloud Email and Storage

Data Collection• Types of Collections• Survey custodians

– Scope– Locations– Basis for strategy

• Allow self collections?– Benefits and hazards– Limit spoliation exposure

• Identify relevant file types• Estimate collection costs

Typical Collection Costs

• Billable metrics (Industry Estimates)– By device

• Computer: $500 to $900– By hour

• Certified Forensic Examiner: $250 to $350• eDiscovery Technician: $130 to $200

– By mean• Physical location

– More hours, travel, hotel, car• Remote

Computer Forensics

• Find and Recover Deleted Files and Emails• Create Timelines of Internet History and Browsing• Tell When and If Files Were Copied• Uncover Intentional Evidence Destruction • Find Evidence of Data Theft• Write Declarations, Reports and Testify to Opinions

and Findings

A War Story

• The Salesman Conspiracy

Early Data Assessment• Attorney driven• Data sampling• Can be used to prepare for Meet & Confer• Low price• Data filter

– DeNist– DeDuplicate– Date range– Custodian– Sender domains– Doc type

• Determine search terms• Estimate processing costs

Data Processing• Assign document s• Hash files

– Protect from spoliation

• Extract meta-data• OCR documents without extractable text• Track conversation threads• Export to review platform

Document Review• Review format

– Native vs Image review• Review types

– Linear– Full disclosure– Technology Assisted Review

• Bulk tagging– Parent-child relationships– Email conversations– Folders

• Review platforms– Hosted vs In-house

• Review costs– Calculate estimated attorney review hours

What is TAR?• Typical Review

– Keyword Searching– Categorization

• Synonyms• Technology Assisted Review

– Predictive Coding (i.e. Netflix, Amazon)

• Concept Based– Pre-Build Conceptual Search Index– Code related documents

• Support Vector-Based– Concept + Analytics

TAR Workflow

Train:Identify Train SetSubject Matter Experts

Analyze:System learns from trainingprioritizes documentssuggests categories

Evaluate:Review machine suggestionsReview production set

Document Production

• Production formats– Native vs Tiff– Current ESI production standards

• “As kept in normal course of business”• Produce for requested review platform

– Summation– Concordance– CaseLogistix– PDF…

– Tracking productions

General Questions?

• Litigation Strategy• Data Preservation and Collection• Computer Forensics vs. eDiscovery• Forensic Analysis• Early Data Assessment• Document Review• Document Production

Essential Attorney Questions

• Who will be handle the electronic discovery?• Who will operate the technology at mediation

or trial?• Who will interface with the experts on

technology issues?• Do we have in-house strength to handle these

tasks?• Ultimately the lawyer is responsible

Get Off of My I-Cloud: Role of Technology in Construction

PracticeSanjay Kurian, Esq.

Trent Walton, Chief Technology Officer U.S. Legal