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Electronic Discovery - The Way Ahead

Contents

Introduction

Over the last century, apart from direct testimony, paper evidence has been the most compelling form of evidence in trying criminal and civil cases. However, with the advent of computers and information technology the dependence on paper documents as the major source of evidence, other than testimony, is changing. The real question is - has the legal community kept pace with the phenomenal growth in computer technology and is it aware of the significance of computer-generated data in the discovery process?

What is Electronic Discovery?

Electronic discovery is the review and production of evidentiary material for litigation stored in electronic format. This may include email, word processing documents, spreadsheets, databases and presentations. The data can be stored or found on portable media (e.g. tapes, CDs, floppies), hard drives, residual data (i.e. deleted data), personal organisers (e.g. palm pilots), mobile telephones, employee personal computers and disaster recovery sites as well as legacy data sets from previous computing environments.

Paper is no longer the sole source of evidence and people seem to forget that today most documents created only ever exist in electronic form.

The Facts

According to the Gartner Group, the leading technology analyst firm, over 80% of data created in the last 20 years exists in some electronic format.

To emphasise the point:

  • 97.3% of all documents created in 2000 were electronic.
  • More than 80% of all litigation projects contain email or electronic files.
  • In the year 2000, there were an estimated 263 million email boxes.
  • Average white-collar worker sends/receives 30 emails a day.
  • Emails are the dominant form of business communication today.

Electronic data is surpassing paper records as the primary focus of discovery in litigation. Most documents originate from a computer, and when asked to identify the locations of all documents relating to a case, clients will usually mention at least one in an electronic format.

In the future, production of electronic evidence will be the key to successful litigation.

In the Past

Like every process there have been various stages of evolution in discovery, not surprisingly, mainly around the advent of technology.

It was not too long ago that each party photocopied relevant documents and created printed lists. In some cases, this amazingly laborious process is still happening! The next phase was to send the documents out to a bureau to scan, OCR and code documents and upload them to a relational database (a litigation support database).

In the early stages of electronic discovery, in the early to mid 90’s, paralegals would open, print, review, scan, OCR, code and then upload to a preferred litigation support database.

The most cost effective way is to get as much data as possible in electronic format first and then utilise a litigation specific process of converting electronic data to data that can be used within a litigation database. The process of committing electronic data to paper and then creating electronic data from the paper is not only time and cost prohibitive, but also does not allow access to all of the information within the original electronic file.

The problems with paper…

When information is created electronically, the printable end product is not all that’s disclosable. Embedded in almost every electronic document is a telltale history of the document itself, such as the original author, document title, creation date, hidden notes, edits, changes, and other traceable information.

When we commit this information to paper via a standard printing process we are simply missing information that may be critical to our position. The fact that a document was reviewed, edited and then printed may be important. Perhaps the fact that there are multiple versions of a single document can help us understand the evolution of the document ultimately giving us a better understanding of the events surrounding the litigation.

Reasons why not to accept email printouts

  1. BCC's are not shown except on author’s message
    Some programs simply do not allow recipients within the BCC fields to be printed.
  2. Lack of metadata (data about the data)
    Information regarding the original author, title, creation date, and number of revisions is simply lost when we print files to paper.
  3. Hidden Information.
    Often users do not fully understand how to access all of the data within programs resulting in a printed version of a document that is not accurate.
  4. Avoids repeated discovery requests.
    Using electronic data you have access to all the information including all drafts up to the final version.
  5. Application conflicts
    Simply stated application conflicts are a programming conflict between an application and the device used to create the paper; the printer. Application conflicts are common and effect virtually every known e-mail program and many common word processing programs often keeping critical data such as the existence of attachments, underlined text, and multiple pages of e-mail messages from being printed to paper.
  6. E-mail can be edited.
    During an electronic review process many e-mail programs allow the savvy, although unscrupulous, user to add information such as recipients, attachments and text.
  7. Lack of a concrete link to an attached file.
    It is impossible to link a printed e-mail to a printed attachment. In many computing environments multiple versions of a document exist with the same file name.
  8. Lack of an instant dynamic data environment.
    E-mail and application files exist within a dynamic environment that allow us to quickly search, sort and access key words and or documents. By committing this information to paper we are missing the advantage of a truly dynamic data environment.

The Future is Here - Litigation Grade Data Conversion

E-mail and their attachments as well as application files can easily be converted to TIFF images with bates numbers burned into them. The full text and metadata can be extracted and added to fielded databases giving the user full Boolean search capability. When converting these electronic files directly to tiff images you eliminate the need to print, bates label, copy, scan, OCR, and code the documents. Once the documents have been converted to TIFF images and fielded, it is possible to use them in a litigation support database. You can search across transcripts, the database and the full text of the e-mail, attachments, and application files.

The ability to quickly create a chronological report of all discovery documents and or find the proverbial smoking gun becomes an easy process using a litigation data conversion process.

The Key Issues that Confront Electronic Discovery

Now that we have a better understanding of the liabilities of printing e-data to paper it is important to address some of the issues of electronic discovery.

Electronic discovery is going to present challenges as we learn to redefine our expectations and definitions of something as simple as a “document”. However, the combined advantages, as well as the possible liabilities that are encountered when we commit e-data to paper are simply too great to overlook.

Common issues facing electronic discovery are:

  • How are we going to do this review?
  • Spreadsheets
  • Database files
  • Auto-date function
  • Zip files
  • System files
  • Unhandled documents
  • Unresponsive documents
  • Duplicates
  • Metadata
  • How many pages do we have?
  • Embedded email messages
  • Legacy data
  • Deleted data

The computing environments, media storage devices and our ability to access remote data will continue to evolve. The issues facing electronic discovery will evolve as well. Many of these issues will be as new to some of us as the thought of electronic discovery. Additionally the thought of addressing these issues and doing so correctly can quickly become daunting. However, it is important to realise that qualified professional help is available to assist in the electronic discovery process.

Many litigation support companies are becoming qualified electronic discovery providers and thus provide a proven process of addressing the issues facing electronic discovery.

Solutions for Managing Electronic Discovery

Unfortunately, there will never be a simple one size fits all solution for electronic discovery as different cases are certain to utilise different computing environments. Additionally, different cases will certainly seek different data types requiring varying processes and techniques.

For these reasons it is critical that users new and familiar with electronic discovery work with a professional litigation resource to help understand the advantages and liabilities of an electronic discovery production.

As a starting point it is useful for the client and the experienced electronic discovery consultant to gain a basic understanding of the computing environment from which data is being sought.

The following are simply a few of the necessary questions that can be asked about the computing environment and users from which we are seeking discovery data. Ideally, these questions will be answered thoroughly addressing media type, software versions, and location of stored data.

Formal data retention and sharing questions:

How many devices store central data?
Is any central data device shared with other corporate or other entities?
How often is central data backed up?

What is the oldest data currently being stored?

Is there legacy data in existence?
What steps are being taken to preserve data at all levels?

User level data retention and sharing questions

Is data being backed up at a user level?
What are the formal and or informal processes for sharing data with co-workers, home computing environments, vendors?
What steps are being taken to preserve user data?

Primary applications

What programs are being used for word-processing, spreadsheets, presentations, project management, etc.?

E-mail

What is the primary e-mail program being used?
Is there remote access?
Are users allowed to utilise and or access web based e-mail accounts?
What steps are being taken to preserve e-mail data?

Understanding the computing environment

Computer data is stored at multiple levels on computer storage media. Many of these levels are not visible to the average computer user. When computer files are deleted, the data is not really deleted. Often complete files remain on hard disk drives, back up tapes or central servers for a period of time. The trail of computer evidence left behind on virtually any computing device can be compelling.

In addition it is very difficult to effectively destroy an electronic document completely. When a user deletes a file on a computer they are not erasing or even moving the file to a different “deleted files” location. When a file is deleted the computer simply recognizes the space used by the file as “available” to be overwritten. Additionally, the computer does not immediately write over this space with the next saved information. The space previously utilised by the file (and the file in it) is left intact until the computer decides that it needs all or a portion of the space in which to save other data. As a result, electronic records may be discovered and may be disclosable long after they are ‘deleted’.

In conclusion

Electronic discovery saves time and money: The user will have the ability to search text from the original source. It allows individuals to effectively manage thousands of documents in a fraction of the time of the traditional paper based systems. Costs are reduced by eliminating the lengthy process of opening, printing and scanning individual electronic files allowing you to find key evidence quickly.

Electronic discovery improves accuracy: 100% of searchable text from the original source is captured rather then 85% accuracy or less due to flaws in all OCR software. Electronic discovery captures important file properties, metadata and can revive files deleted from a computer. Individuals can now review all of the drafts, derivatives and document trails.

Electronic discovery manages complexities. Tiff images are created identical to original documents. Applications are used to capture the exact page layout, eliminate all blank pages and show all hidden files and formulas with in spreadsheets. All duplicate files are eliminated and protection of relationships between an e-mail and file attachment are made regardless of size.

Electronic discovery offers solutions to meet your needs. All related data is stored in one convenient place taking up no more space then the size of a hard drive. It allows the user to access documents quickly and easily without having to wait days for documents to be copied and distributed. The documents can be made available over the Internet with different levels of security protection to guarantee integrity and confidentiality.

If you are not asking for electronic data in the discovery process then you are missing easily accessible data that may prove to be critical to your position.

About the Authors: Chris O'Reilly is the Director of International Litigation Support at LDM, and Jason Derting is the owner of Pacific Legal. The authors would like to recognise the contribution to this article by Rachel Teisch of Case Central and Mike Alonzo of Daticon.