eDiscovery Daily Blog

• November 7, 2019

Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on July 25, 2013, when eDiscovery Daily was less than three years old.  It was a throwback post of sorts even back then as it referenced several earlier posts and was inspired for today’s post by Craig Ball’s new primer – Processing in E-Discovery – which I covered yesterday on our blog.  Craig’s new primer immediately confronts a myth that many attorneys believe with regard to electronic files and how easily (and quickly) they can be made ready for production.  Spoiler alert!  There’s a lot more to it than most attorneys realize.  Craig’s primer does a thorough job of explaining the ins and outs of that, but if you haven’t gotten a chance to read it all yet – you should – here are a few specific reasons that I explained over six years ago why the files need processing to be reviewable and useful.  Enjoy!

Since hard copy discovery became electronic discovery, I’ve worked with a number of clients who expect that working with electronic files in a review tool is simply a matter of loading the files and getting started.  Unfortunately, it’s not that simple!

Back when most discovery was paper based, the usefulness of the documents was understandably limited.  Documents were paper and they all required conversion to image to be viewed electronically, optical character recognition (OCR) to capture their text (though not 100% accurately) and coding (i.e., data entry) to capture key data elements (e.g., author, recipient, subject, document date, document type, names mentioned, etc.).  It was a problem, but it was a consistent problem – all documents needed the same treatment to make them searchable and usable electronically.

Though electronic files are already electronic, that doesn’t mean that they’re ready for review as is.  They don’t just represent one problem, they can represent a whole collection of problems.  For example:

• Image only electronic files such as TIFF or image-only PDF files may be electronic, but they still have no searchable text. They still require OCR to generate searchable text to enable them to be effectively searched.  It’s important to account for image-only files when self-collecting as keyword searches will miss these files.
• Outlook Emails are typically stored in a “container” file like an EDB (Exchange Database), OST (Outlook Offline Storage Table) or PST (Outlook Personal Storage Table). To work with the emails individually, they typically require processing to break them out into individual MSG (Outlook MSG Files).  That processing is also necessary to break out the attachments from the emails so that they can be reviewed or categorized individually, if required.  And, if the emails are stored in Lotus Notes, there is no equivalent single message format, so those emails generally require conversion to HTML format during processing.
• Databases are large, structured collections of data, but they don’t relate easily to a document format, so they require some analysis to determine if, and in what form, they should be produced.
• In almost every collection, there are some files that cannot be processed or searched. Corrupt files, password protected files and other types of exception files are frequent components of your ESI collection and it can become very expensive to make these files searchable or reviewable.

These are just a few examples of why working with electronic files for review isn’t necessarily straightforward.  Of course, when processed correctly, electronic files include considerable metadata that provides useful information about how and when the files were created and used, and by whom.  They’re way more useful than paper documents.  So, it’s still preferable to work with electronic files instead of hard copy files whenever they are available.  But, despite what you might think, that doesn’t make them ready to review as is.

So, what do you think?  Do you work with attorneys who still expect the files to be available for review immediately?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.