Entire Issue - National Association of Legal Assistants

TECHNOBITS
Use the Technology
Electronic Discovery
by Alan Kays, Uniscribe
The following article was first published in the Spring
2003 issue of Discovery Edge, a publication of Uniscribe
Professional Services, Inc., 200 Connecticut Ave., Norwalk, CT
06854. It is transcribed and reprinted here with permission of
Uniscribe and Alan Kays.
Over the past 20 years, individual employees of corporations
have unwittingly gained more power to influence litigation.
They are creating more electronic documents, which
tell more of the story than the individuals may have ever
intended. Yet this story can only be heard by attorneys willing
to meet changes in business practice with changes in
their discovery habits.
Individuals have always written letters, memoranda,
reports, and telephone messages upon which evidentiary
support is built, whether to support the claims in a litigation
or to refute them. Traditionally, however, these documents
have existed in paper form, where the reader had no access
to any collateral information about the document’s creator—
or about the creator’s thought process. Now that individuals
are creating those documents in electronic form and sharing
them via e-mail, they are generating a higher volume of documents
and communication. And they are leaving fascinating
clues for attorneys to discover—if attorneys are willing to
look beyond the paper.
Developments like the desktop revolution of the mid-
1980s have allowed individuals in an organization to generate
an unprecedented number of electronic documents. Simultaneously,
however, the technology has been creating and storing
an unprecedented amount of information about its users.
Nowhere to Hide
Word processing documents can tell who may have created
the file, as well as when, and how many times they were edited.
These documents can also contain actual edited information
that does not appear in the final paper form. Spreadsheets contain
hidden columns and rows that may not be visible when
printed on paper. Even the computer’s operating system holds
massive amounts of information as to the user’s computer habits
by saving temporary versions of created and received files, and
logging the Web sites the user has visited.
This information is most often only accessible to attorneys
who seek out electronic files in their native format.
Hard drive discovery forensics has been a highly useful tool
in the investigation of terrorists and in efforts to control
child pornography rings. But what is the value of electronic
information for an “average” civil litigation?
The truth is that electronic files and their metadata
(the underlying data of a file, the properties of that file, and
the data the software uses to manage the file) give attorneys
rich insight into the thought processes and breadth of concurrent
knowledge of a company’s operations and strategies.
Common metadata includes file type, file size, date created,
date last modified, created by, and title.
E-mail is a particularly rich source of information,
allowing attorneys to “eavesdrop” on an almost uninterrupted,
stream-of-consciousness “conversation” between participants.
Messages tend to be candid and casual, with participants
acting and reacting on the emotional spur of the
moment. Files frequently accompany strands of the electronic
conversation, establishing true linkage as to “who knew
what and when did they know it?” Like other electronic
documents, e-mails also carry metadata that may be invisible
when the files are printed, including blind carbon copies
(BCC), date and time sent, and the date and time received.
Most attorneys do not access electronic documents and
metadata voluntarily, but in response to a discovery request,
or a regulatory request specifically aimed at data. The resulting
process of electronic discovery which involves collection,
analysis, review, conversion, and production of electronic
data, often becomes the world’s most complicated way to
generate paper.
By understanding how electronic discovery works, attorneys
and their legal teams may be able to see that valuable
data is within easy reach of their current approach, adding
value to their case that more than justifies any additional cost.
The Process
There are five phases to effective electronic data processing,
only a few of which are negotiable
1. Harvesting—the collection of possible responsive
data from their original locations. This step is required for
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FACTS & FINDINGS / AUGUST 2003