Electronic Discovery

First Pass Review: Of Your Opponent’s Data

In the past few years, applications that support Early Case Assessment (ECA) (or Early Data Assessment, as I prefer to call it) and First Pass Review (FPR) of ESI have become widely popular in eDiscovery as the analytical and culling benefits of conducting FPR have become obvious. The benefit of these FPR tools to analyze and cull their ESI before conducting attorney review and producing relevant files has become increasingly clear. But, nobody seems to talk about what these tools can do with opponent’s produced ESI.

Less Resources to Understand Data Produced to You

In eDiscovery, attorneys typically develop a reasonably in-depth understanding of their collection. They know who the custodians are, have a chance to interview those custodians and develop a good knowledge of standard operating procedures and terminology of their client to effectively retrieve responsive ESI. However, that same knowledge isn’t present when reviewing opponent’s data. Unless they are deposed, the opposition’s custodians aren’t interviewed and where the data originated is often unclear. The only source of information is the data itself, which requires in-depth analysis. An FPR application like FirstPass™, powered by Venio FPR™, can make a significant difference in conducting that analysis – provided that you request a native production from your opponent, which is vital to being able to perform an in-depth analysis.

Email Analytics

The ability to see the communication patterns graphically – to identify the parties involved, with whom they communicated and how frequently – is a significant benefit to understanding the data received. FirstPass provides email analytics to understand the parties involved and potentially identify other key opponent individuals to depose in the case. Dedupe capabilities enable quick comparison against your production to confirm if the opposition has possibly withheld key emails between opposing parties. FirstPass also provides an email timeline to enable you to determine whether any gaps exist in the opponent’s production.

Tomorrow, I’ll talk about the use of synonym searching to find variations of your search terms that may be common terminology of your opponent. Same bat time, same bat channel! 🙂

In the meantime, what do you think? Have you used email analytics to analyze an opponent’s produced ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

Social Tech eDiscovery: Twitter Guidelines for Law Enforcement

Tuesday, I provided information regarding Facebook’s Law Enforcement page with information about serving civil subpoenas. Facebook provides quite a bit of useful information regarding serving subpoenas, including the address for registered agent (to process requests), information required to identify users, fee for processing, turnaround time, and fee to expedite responses. Facebook is very informative with regard to how subpoenas are handled in terms of cost and time to process.

So, it makes sense to look at other popular social media sites to see how they are handling this issue. Twitter is probably right behind Facebook in terms of popularity in the social media world and they have a “Guidelines for Law Enforcement” page to address requests for non-public information for Twitter users.

As the Twitter policy notes, most Twitter profile information is public, so anyone can see it. A Twitter profile contains a profile image, background image, as well as the status updates, which, of course, they call “tweets”. In addition, the user has the option to fill out location, a URL, and a short “bio” section about themselves for display on their public profile. Non-public information includes “log data” such as IP address, browser type, the referring domain, pages visited, search terms and interactions with advertisements (as noted in their Privacy Policy page).

Twitter doesn’t provide any cost information regarding processing subpoena requests, nor do they address standard turnaround times or fees to expedite processing. Their policy is to notify users of requests for their information prior to disclosure unless they are prohibited from doing so by statute or court order and they do require the URL of the Twitter profile in question to process any subpoena requests. They do provide email, fax and physical address contact information to address user information requests. FYI, only email from law enforcement domains will be accepted via the email address. Preservation requests must be signed with a valid return email address, and sent on law enforcement letterhead. Non-law enforcement requests should be sent through regular support methods (via their main support page).

So, what do you think? Have you ever needed to file a subpoena on Twitter? Please share, or let us know or if you’d like to know more about a particular topic.

eDiscovery Searching 101: Sites for Common Misspellings

Yesterday, we talked about the importance to include misspellings when searching for relevant ESI to broaden the search to retrieve potentially responsive files that might be otherwise missed and the use of “fuzzy searching” (with a product like FirstPass™, powered by Venio FPR™ that supports this capability) to identify variations as potential misspellings within the collection. Another way to identify misspellings is to use a resource that tracks the most typical misspellings for common words.

Examples of Sites

At Dumbtionary.com, you can check words against a list of over 10,000 misspelled words. Simply type the correct word into the search box with a “plus” before it (e.g., “+management”) to get the common misspellings for that word. You can also search for misspelled names and places.

Wikipedia has a list of common misspellings as well. It breaks the list down by starting letter, as well as variations on 0-9 (e.g., “3pm” or “3 pm”). You can go to the starting letter you want to search, then do a “find” on the page (by pressing Ctrl+F) and type in the string to search.

Wrongspelled.com and Spellgood.net are two other examples of sites for searching for common misspellings. Not all sites have the same misspellings, so it’s good to check multiple sites to comprise a comprehensive list. Each site provides an ability to search for your terms and identify common misspellings for each, enabling you to broaden your search to include those variations and most of these sites are updated regularly with new common misspellings.

Using Fuzzy search or sites with typical misspellings for your terms is one method of ensuring a more diligent eDiscovery search process by retrieving additional “hits” that might otherwise be missed. Over the weeks to come, we’ll talk about others.

In the meantime, what do you think? Are you aware of other sites to find common misspellings? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Searching 101: It's a Mistake to Ignore the Mistakes

How many times have you received an email sent to “All Employees” like this? “I am pleased to announce that Joe Smith has been promoted to the position of Operations Manger.”

Do you cringe when you see an email like that? I do. I cringe even more when the email comes from me, which happens more often than I’d like to admit.

Of course, we all make mistakes. And, forgetting that fact can be costly when searching for, or requesting, relevant documents in eDiscovery. For example, if you’re searching for e-mails that relate to management decisions, can you be certain that “management” is spelled perfectly throughout the collection? Unlikely. It could be spelled “managment” or “mangement” and you would miss those potentially critical emails without an effective plan to look for them.

Finding Misspellings Using Fuzzy Searching

How do you find them if you don’t know how they might be misspelled? Use a search tool like FirstPass™, powered by Venio FPR™ that supports “fuzzy” searching, which is a mechanism by finding alternate words that are close in spelling to the word you’re looking for (usually one or two characters off). FirstPass will display all of the words – in the collection – close to the word you’re looking for, so if you’re looking for someone named “Brian”, you can find variations such as “Bryan” or even “brain” – that could be relevant. Then, simply select the variations you wish to include in the search. Fuzzy searching is the best way to broaden your search to include potential misspellings and FirstPass provides a terrific capability to select possible misspellings to review additional potential “hits” in your collection.

The most popular TV series all use “cliffhangers” to keep the audience hooked, so tomorrow, I’ll talk about sites available to identify common misspellings for terms as another way to broaden searches to include mistakes. 🙂

In the meantime, what do you think? Do you have any real-world examples of how fuzzy searching has aided in eDiscovery search and retrieval? Please share any comments you might have or if you’d like to know more about a particular topic.

Social Tech eDiscovery: Facebook Subpoena Policy

As President and CEO of Trial Solutions, I’ve noted and embraced the explosion in use of social technology over the past few years (Trial Solutions has a Facebook, Twitter and LinkedIn page, and this blog, with more to come soon). According to new statistics from Nielsen, social network sites now account for 22.7% of time spent on the web, a 43% jump in one year (by contrast, email only accounts for 8.3%). With that explosion in social tech use, companies have had to address social media as another form of media to collect for eDiscovery. It seems there’s a new article or blog post online every week on the subject and there is a social media webinar at Virtual Legal Tech this Thursday.

As probably the most popular social media site, Facebook is one of the most likely sites for relevant ESI. There are already a number of stories online about people who have lost their jobs due to Facebook postings, such as these. There is even a Facebook group to post stories about Facebook firings. Oh, the irony!

Naturally, cases related to Facebook eDiscovery issues have become more prevalent. One case, EEOC v. Simply Storage Management, resulted in a May ruling that “SNS (social networking site) content is not shielded from discovery simply because it is ‘locked’ or ‘private’”. So, request away!

If the employee resists or no longer has access to responsive content (or you need to request from their online friends through “Wall” posts), you may have to request content directly from Facebook through a subpoena. Facebook has a Law Enforcement page with information about serving civil subpoenas, including:

  • Address for Registered Agent (to process requests)
  • Information Required to Identify Users – Facebook user ID (“UID”) or email address
  • Fee for Processing ($500, plus an additional $100 if you want a notarized declaration)
  • Turnaround Time (minimum of 30 days)
  • Fee to Expedite Responses ($200)

Obviously, fees are subject to change, so check the page for the latest before serving your subpoena.

So, what do you think? Have you ever needed to file a subpoena on Facebook? Aware of other case law related to Facebook eDiscovery? Please share, or let us know or if you’d like to know more about a particular topic.

Case Law: Spoliate Evidence and Go to Jail?!?

One of the most well-known cases in eDiscovery is Victor Stanley (VSI) v. Creative Pipe (CPI) and is a prime example of what NOT to do when conducting a search for relevant ESI in litigation – Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 U.S. Dist. LEXIS 42025 (D. Md. May 29, 2008), – including not testing the search methodology, resulting in inadvertent disclosure of 185 privileged documents, and the waiving of privilege of same. If you’re not familiar with this case, Google it and you’ll find plenty of sites/articles that discuss its significance.

If that was a blow to Creative Pipe and their president, Mark Pappas, the order issued on September 9th for that same case (now widely referenced as “Victor Stanley II”) makes the May 2008 order pale in comparison.

Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.” As a result, he ordered “that Pappas’s pervasive and willful violation of serial Court orders to preserve and produce ESI evidence be treated as contempt of court, and that he be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”

Ouch!

Clearly, Judge Grimm felt that Pappas’ and CPI’s behavior in this case over four years represented intentional destruction of evidence and he ruled accordingly on plaintiff’s motion regarding same. Perhaps his view of their actions can be summarized by footnote 19 in the order:

“CPI named one of its product lines the “Fuvista” line. Pappas admitted during discovery that “Fuvista” stood for “F**k you Victor Stanley,” (Pappas Dep. 22:20-24, Pl.’s Mot. Ex. 5, ECF No. 341-5), demonstrating that Pappas’s wit transcended sophomoric pranks such as logging into VSI’s web site as “Fred Bass” and extended to inventing insulting acronyms to name his competing products. When disclosed, the meaning of this acronym removes any doubt about his motive and intent. No doubt Pappas regarded this as hilarious at the time. It is less likely that he still does.”

So, what do you think? Is this the start of a trend – prison sentences for evidence spoliation? Or, is this an extreme example of clear intentional evidence destruction? Please share any comments you might have (including examples of other cases where sanctions included jail time) or if you’d like to know more about a particular topic.

More to come on this case in the future…

eDiscovery Searching 101: Don’t Get “Wild” with Wildcards


Several months ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel. One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.

That one search retrieved over 300,000 files with hits.

Why? Because there are 269 words in the English language that begin with the letters “min”. Words like “mink”, “mind”, “mint” and “minion” were all being retrieved in this search for files related to “mining”. We ultimately had to go back to opposing counsel and negotiate a revised search that was more appropriate.

How do you ensure that you’re retrieving all variations of your search term?

Stem Searches

One way to capture the variations is with stem searching. Applications that support stem searching give you an ability to enter the root word (e.g., mine) and it will locate that word and its variations. Stem searching provides the ability to find all variations of a word without having to use wildcards.

Other Methods

If your application doesn’t support stem searches, Morewords.com shows list of words that begin with your search string (e.g., to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters). Choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

Some applications let you select the wildcard variations you wish to use. FirstPass™, powered by Venio FPR™, enables you to type in the wildcard string, display all the words – in your collection – that begin with that string, and select the variations on which to search. As a result, you can avoid all of the non-relevant variations and limit the search to the relevant hits.

So, what do you think? Have you ever been “burned” by wildcard searching? Do you have any other suggested methods for effectively handling them? Please share any comments you might have or if you’d like to know more about a particular topic.

Announcing eDiscovery Daily!


eDiscovery Daily is a new blog created by Trial Solutions that is intended to provide eDiscovery news, analysis and educational tips to professionals affected by eDiscovery issues. If you’re reading this, you’re probably one of those professionals, whether you are a law firm attorney having to manage productions, corporate counsel coordinating the activities of your outside firms, or providers of eDiscovery related services that simply want to “keep tabs” on what other people are saying in the industry.

Who is Trial Solutions?

A word from our sponsor (brief, I promise!). Trial Solutions is an eDiscovery software and services company that is committed to making collection, processing and review of electronic data easier for our clients. Trial Solutions provides FirstPass™, powered by Venio FPR™, which provides online first pass review for eDiscovery and OnDemand™, powered by ImageDepot™ as an online eDiscovery review application to eliminate the need to purchase software for review. Trial Solutions provides litigation support services and software in over 90 metropolitan areas throughout the US and Canada.

There are other blogs on eDiscovery. What makes eDiscovery Daily unique?

First, it’s a daily eDiscovery blog that strives to provide useful daily information related to eDiscovery. Are we crazy to commit to a daily blog? As an old boss of mine used to say, “we’re either committed or we ought to be”. However, as there are eDiscovery newsworthy items almost daily, there are plenty of topics to talk about. So, we decided to create a daily blog, with a goal for a new post each business day. OK, maybe we’re not that crazy!

Second, the blog coordinators have many years of experience as legal technology services providers. Brad Jenkins, President and CEO of Trial Solutions, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions. Brad can be reached by email at bjenkins@trialsolutions.net. For a complete LinkedIn profile on Brad, click here.

Doug Austin, Professional Services Manager for Trial Solutions, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices. Doug can be reached by email at daustin@trialsolutions.net. For a complete LinkedIn profile on Doug, click here.

In addition to Brad and Doug, Trial Solutions has an experienced team, providing and supporting litigation support software and services to our clients that will contribute posts to this blog.

Finally, Trial Solutions has a network of over 100 partner providers around the country – a large breadth of resources to assist in providing relevant, useful eDiscovery information. Subsequently, we can provide a collection of perspectives and knowledge to eDiscovery Daily that is unique in the eDiscovery blog world.

Ultimately, the usefulness of eDiscovery Daily to you is up to you. We want your feedback! Do you have a different take on a particular post? See a different topic covered? Maybe contribute a topic yourself? Please share your comments so that we can make eDiscovery Daily a valuable resource to eDiscovery professionals everywhere. What are you waiting for? Here are some topics to get you started:

Case Law: Spoliate Evidence and Go to Jail?!?

eDiscovery Searching 101: Don’t Get “Wild” with Wildcards