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In This Election Season, Contested Elections May Require eDiscovery to Sort Out the Results: eDiscovery Trends

Remember the 2000 Presidential election and all of the issues and headaches that resulted from punch card “butterfly” ballots and “hanging chads” down in Florida?  These days, electronic ballots are more popular.  However, using those electronic ballots doesn’t solve all problems and, if there are disputes, there may be a need for eDiscovery professionals to sort out the results.

This article on Legaltech News (For 2016 Election, Electronic Voting and Discovery May Collide on Complex Terrain, written by Ricci Dipshan) discusses the issues and concerns over this year’s elections and the possibility that eDiscovery may be necessary to evaluate the process.  Certainly, we’ve already seen concerns about the fairness of the process already.  “Both sides of the aisle during the primary were certainly talking about rigged elections, and that talk does continue,” notes Mary Mack, executive director for the Association of Certified E-Discovery Specialists (ACEDS).

These days, Florida uses a mix of paper ballots and touch-screen direct recording electronic (DRE) voting systems, but the DRE voting machines aren’t perfect.  According to data from Verified Voting Foundation, Florida is one of 15 states where some or all of the DRE machines used in elections do not have a voter-verifiable paper audit trail (VVPAT), a printed paper record of a vote that the voter immediately reviews and keeps with election officials.

The accuracy of the DRE voting machines was at issue in a 2006 Florida congressional seat race (why do these always seem to happen in Florida?) where the losing candidate filed a complaint with Florida’s 2nd Judicial Circuit court, alleging that DRE voting machine malfunctions contributed to an undervote of 18,000 ballots and therefore swung the election.  She requested expedited discovery access to the hardware, software and source code of the county’s DRE machines, but the defendants which included state and county officials, refused, evoking ES&S’s trade-secret privilege under Florida’s evidence law.  The judge upheld the privilege and denied the motion for discovery.

“I certainly understand the need to protect trade secrets, but there are methods that we use in litigation to protect trade secrets,” Mack said. “There’s actually a discipline called software forensics, where somebody who is trained can go in and explain what the code is doing. Software forensics is mostly used in patent cases and intellectual property cases, but it could certainly also be used here.”

DRE machines also keep event logs that track activity for each DRE voting machine and could help identify machine malfunctions.  And, as you probably know if you’ve ever voted in any election for government officials, protocols and procedures play an important part too.

In an effort to support these protocols, ACEDS has sent a formal letter to the National Association of Secretaries of States, offering help in the form of “witnesses, collection people, and experts,” Mack said, adding that as the effort is not centralized, “members will be calling into their local county organizations, so I expect that in certain places we will be engaged.”  ACEDS is also currently researching whether it can offer technology, including traditional eDiscovery software and hashing tools to help election workers as well.

While no secretary of state has taken ACEDS up on its offer yet, there is still time.  “For me, [it would be] a wonderful thing if we prepared to do this and then don’t need to”, said Mack.

So, what do you think?  Will we need eDiscovery to sort out election result disputes this November?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

If Your Documents Are Not Logical, Discovery Won’t Be Either – eDiscovery Best Practices

Scanning may no longer be cool, but it’s still necessary.  Electronic discovery still typically includes a paper component.  When it comes to paper, how documents are identified is critical to how useful they will be.  Here’s an example.

Your client collects hard copy documents from various custodians related to the case and organizes them into folders.  In one of the folders is a one page fax cover sheet attached to a two page letter, as well as an unrelated report and four different contracts, each 15-20 pages.  The entire folder is scanned as a single document, as either a TIFF or PDF file.

Only the letter is retrieved in a search as responsive to the case.  But, because it is contained within a document containing 70 to 80 other pages, you wind up reviewing 70 to 80 unrelated pages that would not otherwise have to review.  It complicates production, as well – how do you produce partial “documents”?  Also, if the non-responsive report and contracts have duplicates in the collection, you can’t effectively de-dupe those to eliminate those from the review population because they’re combined together.

It happens more often than you think.  It also can happen – sometimes quite often – with the scanned documents that the other side produces to you.  So, how do you get the documents into a more logical and usable organization?

Logical Document Determination (or LDD) is a process that some eDiscovery providers (including – shameless plug warning! – CloudNine Discovery).  It’s a process where each image page in a scanned document set is reviewed and the “logical document breaks” (i.e., each page that starts a new document) is identified.  Then, the documents are re-assembled, based on those logical document breaks.

Once the documents are logically organized, other processes – like Optical Character Recognition (OCR) and clustering (including near duplicate identification) can then be performed at the appropriate level of documents and the smaller, more precise, unitized documents can be indexed for searching.  Instead of reviewing a 70-80 page “document” comprised of several logical documents, your search will retrieve the two page letter that is actually responsive, making your review and production processes more efficient.

LDD is typically priced on a per page basis of pages reviewed for logical document breaks – prices can vary depending on the volume of pages to be reviewed and where the work is being performed (there are providers in the US and overseas).  While it’s a manual process, it’s well worth it if your collection of imaged documents is poorly defined.

So, what do you think? Have you ever received a collection of poorly organized image files? If so, did you use Logical Document Determination to organize them properly?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Daily is Two Years Old Today!
 

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog.  Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom?   Maybe.  Or maybe not.  Wouldn’t that be fun!

As we noted when recently acknowledging our 500th post, we have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!  We now have nearly seven times the visitors to the site as we did when we first started.  We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Litigation Support Blog.com, Litigation Support Technology & News, Ride the Lightning, InfoGovernance Engagement Area, Learn About E-Discovery, Alltop, Law.com, Justia Blawg Search, Atkinson-Baker (depo.com), ABA Journal, Complex Discovery, Next Generation eDiscovery Law & Tech Blog and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

We like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

We talked about best practices for issuing litigation holds and how issuing the litigation hold is just the beginning.

By the way, did you know that if you deleted a photo on Facebook three years ago, it may still be online?

We discussed states (Delaware, Pennsylvania and Florida) that have implemented new rules for eDiscovery in the past few months.

We talked about how to achieve success as a non-attorney in a law firm, providing quality eDiscovery services to your internal “clients” and how to be an eDiscovery consultant, and not just an order taker, for your clients.

We warned you that stop words can stop your searches from being effective, talked about how important it is to test your searches before the meet and confer and discussed the importance of the first 7 to 10 days once litigation hits in addressing eDiscovery issues.

We told you that, sometimes, you may need to collect from custodians that aren’t there, differentiated between quality assurance and quality control and discussed the importance of making sure that file counts add up to what was collected (with an example, no less).

By the way, did you know the number of pages in a gigabyte can vary widely and the same exact content in different file formats can vary by as much as 16 to 20 times in size?

We provided a book review on Zubulake’s e-Discovery and then interviewed the author, Laura Zubulake, as well.

BTW, eDiscovery Daily has had 150 posts related to eDiscovery Case Law since the blog began.  Fifty of them have been in the last six months.

P.S. – We still haven't missed a business day yet without a post.  Yes, we are crazy.

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

eDiscovery Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 499 previous posts.  Maybe you missed some?  😉

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