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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 40 FACTS & FINDINGS / AUGUST 2003
any electronic discovery project and may represent a sizable portion of the cost, depending upon what is requested, and to what extent the services of a computer forensics expert may be required. Responsibility for this process must be tightly controlled to ensure complete compliance with the request, as well as the integrity of the data. Harvesting should not be undertaken without a thorough understanding of the company’s IT and data storage processes. 2. Analysis/Culling—once all the possibly responsive data has been collected, a central repository of data needs to be built. This is called “staging,” and like harvesting, staging is required. Staging may also represent a large portion of the overall cost, particularly when large numbers of back-up tapes must be restored. As the repository is built, backups are restored in an effort to arrive at a unique set of data. Once built, decisions, can be made as to relevancy, time frame, etc. based upon dates and source information. 3. Conversion—The conversion process focuses on the processing of each file. This step is negotiable and customizable, depending upon your needs. • Conversion can involve converting native files to TIFF or PDF while extracting metadata and text into a searchable and usable database application such as Summation, Concordance, or Introspect. The TIFFs or PDFs, in turn, can be printed very quickly to create a paper set. • Conversion may also involve converting files to TIFF or PDF without extracting metadata. • Attorneys can opt for no file conversion at all, but attempt to print straight from native format to paper. Called “source file printing,” this process can be tedious and slow, even when conducted by a third-party vendor. Some electronic files (e.g., e-mail) can be loaded directly into a database, making conversion of those unnecessary. 4. Review—Review of electronic documents is just like review of paper documents, and should not be skipped. Each document that has the possibility of being produced to an interested party should be reviewed for relevancy and privilege. The review stage also helps to build collateral case information such as timelines. It may be possible to conduct this review electronically, on the firm’s network, or even online. 5. Production—The final form of the document to be produced depends upon the agreement of the parties or the order of the court. Productions are made as 1) paper, 2) TIFF images delivered on CD (or other media), or 3) copies of the original electronic files. There are advantages to each, depending upon the overriding case strategy. However, providing the files in original format rather than as images or paper creates an additional burden on the producing party. The party must completely review all aspects of the document, including metadata, and take precautions against producing data that may be privileged or confidential. Rewards & Responsibilities As we have seen over the past decade, technology has opened the door to increased communication and exchange of information. With this increase in activity comes exponentially increased likelihood of incriminating or corroborating information that is of paramount importance in litigating matters before the courts, and for adequately responding to government inquiries. Attorneys forced to engage in electronic discovery often tend toward the road more traveled and seek to produce paper, sometimes out of concern for cost, and sometimes out of concern for time. Yet much of the cost of electronic discovery comes in the harvesting and staging phases of the process, while smaller costs in conversion can yield rich rewards in the form of metadata and searchable text. Each case must have its own electronic discovery strategy based on the volume of the data, the usability and value of metadata, cost sharing and cost allocation decisions (or rulings), and the discovery schedule. Alan Kays owned a litigation support business in New York for many years before joining Uniscribe’s Digital Document Solutions Division. He is a frequent speaker to groups and clients around the country on the subject of electronic discovery. AKays@Uniscribe.com F& F FACTS & FINDINGS / AUGUST 2003 41
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