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BlueStar Accelerates Modern eDiscovery with ESI Analyst – CloudNine Podcasts

It’s a challenge to produce relevant evidence for large cases, especially when they feature non-traditional data types. JSON and PST formats simply don’t do modern data justice. The unwieldy files don’t possess threading or deduplication options. Instead, large amounts of irrelevant data are stretched across a multitude of pages and folders. Finding a team to manually review that data slows production speeds and raises discovery costs. It’s time to stop forcing a square peg into a round hole.

As the CTO and Managing Partner at BlueStar, Jeremy Schaper has seen an uptick of non-traditional data in the last five years. He and his team found CloudNine’s ESI Analyst while searching for an eDiscovery solution to process both traditional and modern data types. Jeremy joined Rick Clark for our CloudNine 360 Innovate Podcast to discuss how BlueStar leveraged ESI Analyst in large cases involving SMS, Slack, and Microsoft Teams data.
Click here to listen to the podcast and learn more.

Perin Discovery Streamlines Workflow Through ESI Analyst: CloudNine Podcasts

For legal teams, the race to production may seem never-ending. The journey begins with some data mapping to discern who owns the data and where it is located. Once the identification process is successful, legal teams are often stopped by the first roadblock. They need to find a vendor that can collect modern data types such as text messages, tweets, and videos. After the data is collected, another roadblock stands in the way. A second vendor is needed to carry out review and production. Stopping and restarting between each step is frustrating and time-consuming, yet few LSPs offer means for a continuous workflow.

Recognizing this issue, Peter Smith and Erin Perczak launched Perin Discovery to provide a one-stop shop for both digital forensics and eDiscovery. The co-founders joined Rick Clark for our 360 Innovate Podcast to explain how they leverage ESI Analyst to engage their clients in a smooth workflow. To learn how our platform has improved their data and case strategies, visit this link: https://cloudnine.com/webcasts/perin-discovery-podcast/?pg=ediscoverydaily/collection/perin-discovery-streamlines-workflow-through-esi-analyst-cloudnine-podcasts

Do’s and Don’ts of Text Message Discovery

Discovery requests of the past had little reason to include text messages as a form of evidence. Emails were the primary concern since they held the bulk (if not all) of business communications. Finding relevant corporate emails was rather simple. Corporate servers stored the data, regardless of how the email was sent or received (via mobile device or work computer). Consequently, companies were able to locate ESI without the assistance of forensic experts. As text messages became the preferred method for informal communications, their usage in the business world also grew. [1] In 2015, research showed that 80% of professionals conducted business communications through texts. This percentage has likely skyrocketed in recent years due to the shift to remote work during the pandemic. Today, some industry experts refer to texts as the new email, citing them as the main source of relevant information. Litigants, however, must remember that phone carriers aren’t obligated to permanently preserve message records. Unless subpoenaed, they may refuse to participate in discovery investigations. Instead of depending on carriers, text messages must be preserved and obtained from the device itself. [2]

Text Message Spoliation Sanctions

  • Stinson v. New York City: The plaintiffs in this suit alleged that the NYPD was issuing summonses without probable cause. The court imposed an adverse inference sanction against New York City for failing to preserve and collect relevant text evidence.
  • Timms v. LZM, LLC: Plaintiff Heather Timms sued her employer for failing to compensate her overtime hours, but she removed text messages and a messaging app before submitting her cell phone as evidence. Consequently, attorney fees were issued, and the case was terminated.
  • First Fin. Sec. Inc. v. Lee: FFS, an insurance broker, requested the production of all written communication after the defendants violated their contract by sharing company information after termination. After failing to produce text message evidence, the Court arranged attorney fees and an adverse inference sanction against the defendant. [3]

Text Message Do’s

  • Develop policies about business messaging. Some companies may go as far as banning all employees from discussing work affairs over text. Others companies may impose regulations on who and how work messages are sent. If your company permits any kind of text-based business communications, set up retention policies and collection plans. Through the policies, ensure that the data is preserved if needed for litigation.
  • Once your retention policies are established, consistently enforce them. Update your employees on any changes that the policies undergo. Poorly enforced policies are no better (and sometimes worse) than having no policy at all.
  • Train employees on how to appropriately send work texts. Also, inform them of the risks associated with deleting potentially relevant information.
  • Issue litigation holds when anticipating litigation. In the litigation hold letter, remind employees to disable any automated deletion features. Companies should also specify if message preservation is required for company devices, personal devices, or both. [4]

Text Message Don’ts

  • Rely on screenshots alone as a way to create records. Text messages can be easily manipulated, so screenshots are not enough to validate their authenticity. Find additional means of proof such as witness or expert testimony. As a better alternative, companies can find a discovery solution to produce the evidence through native or near-native files.
  • Rely on phone carriers to preserve the messages. As stated above, carriers will only store the data for short periods of time. Take ownership of your preservation duties by establishing retention policies in advance.
  • Delete messages or conversation histories when anticipating litigation.
  • Manually preserve text messages by copying and pasting them into other sources. Manual efforts include forwarding text messages to email and exporting texts to Excel files. These methods are time-consuming and harder to authenticate in court. [5]

 

[1] Nicole Allen, “Text Messages: Preservation Lessons for Mobile E-discovery,” LitSmart E-Discovery, December 20, 2017.

[2] Bill Kammer, “In eDiscovery, Texts are the New Email,” SDCBA Blawg 401, January 7, 2020.

[3] Zac Muir, “Failure to Produce Text Messages in eDiscovery,” Microfocus, October 16, 2012.

[4] Anthony J. Diana, Catherine Bernard, and Therese Craparo, “Managing The Risks And Costs Of Text Messaging (Electronic Discovery & Records Management – Tip Of The Month),” April 3, 2013.

[5] “How Federal Agencies Can Capture Text Messages for E-Discovery,” February 4, 2021.

TIFFs, PDFs, or Neither: How to Select the Best Production Format

Through Rule 34(b) of the FRCP, the requesting party may select the form(s) of production based on the needs of the case. Though this flexibility better serves the client, it also begs a few important questions: What is the best form of production? Is there one right answer? Since there are multiple types of ESI, it’s hard to definitively say that one format type is superior. Arguably, any form is acceptable so long as it facilitates “orderly, efficient, and cost-effective discovery.” Requesting parties may ask for ESI to be produced in native, PDF, TIFF, or paper files. Determinations typically consider the production software’s capabilities as well as the resources accessible to the responding party. [1] The purpose of this article is to weigh the advantages and disadvantages of each type so that legal teams can make informed decisions in the future.

Production Options

  1. Native – As the often-preferred option, native files are produced in the same format in which the ESI was created. Since native files require no conversions, they save litigants time and money. True natives also contain metadata and other information that TIFF and PDF files may lack. Litigants may also be interested in native files for their clear insights into dynamic content (such as comments and animations). TIFFs and PDFs can only process dynamic content through overlapping static images. This cluttered format is often confusing and hard to decipher. Though useful, litigants must be careful with the metadata and dynamic content because they may contain sensitive or privileged information. [2] Native files may seem like the superior choice, but they aren’t always an option. Unfortunately, some ESI types cannot be reviewed unless they are converted into a different form. Additionally, reviewers utilizing this format are unable to add labels or redactions to the individual pages.
  2. TIFF – TIFFs (tagged image format files) are black and white, single-paged conversions of native files. Controllable metadata fields, document-level text, and an image load file are included in this format. Though TIFFs are more expensive to produce than native files, they offer security in the fact that they cannot be manipulated. Other abilities that differentiate TIFFs include branding, numbering, and redacting information. [3] To be searchable, TIFFs must undergo Optical Character Recognition (OCR). OCR simply creates a text version of the TIFF document for searching purposes.
  3. PDFs – Similar to TIFFs, PDFs also produce ESI through static images. PDFs can become searchable in two ways. The reviewer may choose to simply save the file as a searchable document, or they can create an OCR to accompany the PDF. However, OCR cannot guarantee accurate search results for TIFFs or PDFs. [1] Advocates for PDFs cite the format’s universal compatibility, small file size, quick download speeds, clear imaging, and separate pages. [4]
  4. Paper – As the least expensive option, paper production may be used for physical documents or printing digital documents. Many litigants prefer to avoid paper productions because they don’t permit electronic review methods. All redactions and bates stamps must be completed manually. This may be okay for a case that involves a small amount of ESI. However, manually sorting and searching through thousands of documents is time-consuming and exhausting. Litigants who opt for this format also miss out on potentially relevant metadata. [3]

 

[1] Clinton P. Sanko and Cheryl Proctor, “The New E-Discovery Battle of the Forms,” For The Defense, 2007.

[2] “Native File,” Thomas Reuters Practical Law.

[3] Farrell Pritz P.C. “In What Format Should I Make My Production? And, Does Format Matter?” All About eDiscovery, May 30, 2019.

[4] “PDF vs. TIFF,” eDiscovery Navigator, February 13, 2007.

Increasing Your Technological Competence, Part 1

From the CloudNine family to yours, we wish you a wonderful holiday season! As a gift of knowledge, this article will focus on defining and maintaining high levels of technological competence. To effectively represent their clients, a lawyer must actively update their knowledge on legislative changes. The American Bar Association referred to this skill in Rule 1.1 as “competence.” The rule originally called for lawyers to possess the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [1] In 2012, the ABA expanded the definition through an amendment concerning technological competence. According to Matthew Knouff from ESI Survival Guide, 39 states adopted this rule in some form by March 2021. South Dakota, Rhode Island, Oregon, New Jersey, Nevada, Mississippi, Maryland, Maine, Hawaii, Georgia, and Alabama are the main exceptions to this trend. [2] Though Rule 1.1’s amendment laid out the framework, it didn’t provide instructions on how lawyers should build their technological competence. To achieve this duty, the California Bar committee issued an opinion, outlining 9 necessary skills. Since this opinion was crafted through examinations of federal cases, these skills could be applicable to various states.

Explanations of the First Five Skills

  1. Initially assess e-discovery needs and issues, if any.

In fear of the cost and rules of e-discovery, some lawyers try to avoid the practice altogether. By doing so, lawyers disadvantage their clients by missing out on relevant ESI. Instead of yielding to eDiscovery trepidation, conduct an initial assessment to determine the cost, timeframe, and data types needed for the investigation. Consider the value of the claims in comparison with the costs of processing and production. Determining which data types must be collected and how much time is allotted for the process. These examinations can act as a starting point in assessing the proportionality of the production request.

  1. Implement or cause to implement appropriate ESI preservation procedures.

To accomplish this skill, lawyers should acquaint themselves with their client’s IT setup. Once the preservation responsibilities have been established, clients and custodians should be informed with clear, written instructions. It’s important to follow up with clients and custodians to ensure that they are complying with the preservation requirements to avoid spoliation sanctions. If requesting ESI from opposing counsel, send a preservation letter that identifies what data should be preserved and where it can be found.

  1. Analyze and understand a client’s systems and storage.

Get familiar with your client’s IT environment and staff. It’s beneficial to request data maps of complex systems and speak directly to the IT staff. Through this knowledge and ease in communication, lawyers will gain a better sense of where relevant ESI may lie. After determining the location of the data, one can access how difficult and/or expensive it will be to access the information.

  1. Advise the client about available options for collection and preservation of ESI.

The scope and cost of preservation might be huge when dealing with larger companies due to their larger volumes of data and longer lists of custodians. However, lawyers should not concern themselves with burdensome collections unless the information is proportional to the case. During Rule 26(f) conferences, consult opposing counsel on the scope of discovery in relation to the costs of collection and production. If the parties determine that the discovery request is disproportional, seek guidance from the court.

  1. Identify custodians of relevant ESI.

After identifying the custodians who possess relevant data, categorize the list into two categories: primary custodians and secondary custodians. As the terms suggest, primary custodians have more direct involvement with the information than secondary custodians. To save money, counsel can decide to initially search for primary custodians within a limited time frame. If necessary and proportional, the search can be expanded to encompass secondary custodians. [3]

 

[1] Model Rules of Professional Conduct Rule 1.1

[2] Matthew Knouff, “How to Gain & Maintain Technology Competence — Element 1: Education — Part 1 of 3,” March 30, 2021.

[3] Hon. Joy Flowers Conti and Richard N. Lettieri, “E-Discovery Ethics: Emerging Standards of Technological Competence,” The Federal Lawyer, 2015.

Assessing the Proportionality of Modern Data Types

The Costs of eDiscovery

As time passes, the definition of electronically stored information (ESI) must expand to accommodate emerging data types. As discussed in our recent article, (Don’t Get Spooked by Communication Applications!), these changes can be intimidating and uncomfortable for some legal teams. Since modern data types are unavoidable in eDiscovery, litigators must adapt and address any subsequent challenges. Financing the production of newer ESI types is a looming concern for many firms. From a financial perspective, each gigabyte of reviewed data costs about $18,000. [1] Meanwhile, 300 million photos are posted to social media every day, and 16 million texts are sent every minute. [2] In addition to paying for production, responding parties must  have adequate access and resources to manage the information. If responding parties cannot juggle these duties, they should speak with the judge and requesting party about the proportionality of the evidence.

Proportionality and Amendments to Rule 26(b)(1)

Before requesting the production of digital evidence in a legal trial, the proportionality of said evidence must be evaluated. In other words, the costs and benefits of production must be weighed. Proportionality is far from a new concept in eDiscovery. Most of its factors and considerations were first added to Rule 26(b)(1) of the FRCP in 1983. On December 1, 2015, the rule was amended slightly to require that the scope of discovery be “proportional to the needs of the case.” [3] Six factors should be considered when evaluating the proportionality of ESI:

  • The importance of the issues at stake in the action – This guideline measures the importance of the non-monetary losses or gains that a party might acquire due to a case (i.e. time, resources).
  • The amount of controversy – This guideline focuses on the money that a party may gain or lose.
  • The parties’ access to relevant information – The need for a formal discovery is determined based on a party’s access (or lack thereof) to relevant information.
  • The parties’ resources – A party’s technological, administrative, and human resources are assessed to determine if they are capable of handling the discovery process.
  • The importance of the discovery in resolving the issues – This guideline relates to the discovery’s importance in resolving the case.
  • Whether the burden or expense of the proposed discovery outweighs its likely benefit – The burdens and benefits of discovery are compared. There is no fixed ratio to determine the proportionality. [4]

Proportionality Best Practices

  • Parties should engage in discovery planning early on. Discussions on the relevance and proportionality of the request should be held as soon as possible.
  • Prior to Rule 26(f), meet in person (or over the phone) to develop a discovery management plan.
  • Ask the judge to hold Rule 16(b) case-management conferences.
  • If you anticipate proportionality disputes or the production of voluminous data, start the discovery process by producing the most accessible and relevant information . [4]

 

[1] Patrick E. Gaas and Tiffany Harrod, “How to Proactively Control E-discovery Costs,” Tech Brief, AGC of America.

[2] Bernard Marr, “How Much Data Do We Create Every Day? The Mind-blowing Stats Everyone Should Read,” Forbes, May 21, 2018.

[3]Rule 26. Duty to Disclose; General Provisions Governing Discovery,” Legal Information Institute, Cornell Law School,

[4] Bolch Judicial Institute, “Guidelines and Best Practices for Implementing the 2015 Discovery Amendments Concerning Proportionality,” Third Edition, 2021.

Investing in the Future: Release Highlights for CloudNine LAW & Explore 7.6

As a dedicated eDiscovery provider, CloudNine is committed to providing our network partners and legal clients with efficient software solutions. Advancements to our innovative technologies are largely due to client feedback and support.

After hearing your feedback on the need to expedite document conversion while also reducing cost and dependency on 3rd party applications, we are eager to announce the latest updates to CloudNine LAW and Explore 7.6.  With more than 200 feature updates and enhancements, the leading applications for early case assessment and processing are equipped to process today’s prodigious volumes of data and accelerate your review and production speeds.

By utilizing a robust ingestion engine, LAW and Explore maximize the processing power of a single computer.

As the primary highlight of LAW 7.6, the new Turbo Imager produces static images of native files up to eight times faster than the traditional imaging module.  By reducing client dependency on native applications, Turbo Imager provides on-demand scalability and workflow efficiency. If available, the tool will utilize multiple processing cores to expedite document conversion time. Turbo Imager will be offered together with Turbo Import licenses. For each license of Turbo Import, CloudNine clients will also receive a license of Turbo Imager or vice versa.

Improved reporting capabilities in  Explore 7.6 provide greater visibility into case metrics, such as original source file counts and sizes, as well as filtered file counts and sizes.. Rather than creating additional copies of data during ingestion, Explore reads and extracts metadata and text from the source, leaving it in place.  After searching and culling, clients may create copies when they are ready to export the information for review. This improvement reduces security risks by minimizing the number of identical files that need to be managed. The reduction in data volumes also decreases review time and expenses by as much as 70%. Additionally, Explore’s Import Library has improved its analysis abilities by recognizing more file types and email components.

To learn more and see a live demonstration, register to view the webinar:  Investing in the Future:  LAW and Explore ver. 7.6 Release or click to request a demonstration.

 

Investing in the Future: Release Highlights for CloudNine LAW & Explore 7.6
Investing in the Future: Release Highlights for CloudNine LAW & Explore 7.6 150 150 CloudNine

Don’t Get Spooked by Communication Applications!

Since Halloween is approaching, it’s time to reflect on a scary part of the discovery process: handling communication applications. As a newer form of digital evidence, communication apps can be a legal team’s worst nightmare. Ephemeral messaging apps like Wickr and Signal make conversations disappear like ghosts in the night. Slack and Microsoft Teams have sunk their teeth into the communications of most corporations. Social media apps have entranced us with a spell, prompting our fingers to type a new DM or tweet every other hour. It’s easy to view these applications as monsters in the discovery process. They have revolutionized the world of e-discovery, expanding it to more than just emails and electronic files.  Whether you love them or hate them, communication apps aren’t going anywhere. In fact, their popularity is only rising. Approximately 2.5 billion people use at least one messaging app on their mobile devices. This number is expected to reach 3 billion by the end of next year. [1] Here’s another chilling statistic: in 2020, 41 million application messages were sent every minute. The volume of communication app data is frighteningly large, but its relevance is undeniable. Regardless of case type, (criminal, personal injury, defamation, etc.) litigants should consider its production. Within each channel and group chat lies a plethora of information that could make or break a case. Still afraid? Here’s a list of challenges and solutions for managing communication applications.

Understanding the missing context:

Messages sent on communication applications are often short and sent with little context. Bits and pieces of conversations might be spread out across multiple platforms and group chats. When handling a case, legal teams should identify all relevant communication platforms to connect the missing dots. Litigants should also consider deriving context from atypical sources such as emojis, liked messages, images, and GIFS. [2] These humorous icons and features can reflect the sender’s tone, a difficult thing to gather over text. Remember, images and emojis aren’t supported in all native file types, so it’s important to find an eDiscovery provider that will reconstruct the conversations. [3]

Managing large volumes of data:

Producing and reviewing voluminous data is stressful, time-consuming, and expensive. By creating comprehensive retention policies, businesses can proactively determine which data types and channels should be preserved. Within the policies, companies should outline the procedures for labeling, storing, and deleting records. [4] The deletion of unneeded data lowers the risk of massive data accumulation.

Remembering each application’s retention policies:

Applications like Slack and Microsoft Teams will retain all messages unless configured otherwise. Similarly, Facebook, Instagram, and Messenger store data until the account has been deleted. [5] If the account owner deletes or unsends a message, the data will still show on the recipient’s phone. Some of these platforms contain “Recently Deleted” features that make recovery much easier. The policies for collaboration and social media applications are rather straightforward. Ephemeral messaging apps are a bit different; however, the auto-deletion features can be adjusted to the user’s discretion. Auto-deletion settings should be turned off during or in anticipation of litigation.

 

[1] Damjan Jugovic Spajic, “Text, Don’t Call: Messaging Apps Statistics for 2020,” Komando Tech, December 11, 2019.

[2] Erin Tomine, “Chat Messages and eDiscovery: How to Ease the Burden and Get the Full Picture,” Conduent, July 7, 2021.

[3] Matthew Verga, “Discovery from Slack: It’s Complicated,” Xact Data Discovery, June 19, 2020.

[4] Law Offices of Salar Atrizadeh, “Electronic Discovery and Data Retention Policies,” Internet Lawyer Blog, May 18, 2020.

[5] “Data Policy,” Instagram Help Center, 2021.

The Discoverability of IoT Devices

What are IoT Devices

The Internet has transformed the way we conduct daily chores. Simple objects such as fridges, watches, doorbells, and washing machines can now be connected to secure networks. This technology is quick, efficient, and the perfect replacement for manual tasks. Whenever the user is within range and connected to WiFi, IoT devices can be used to turn on the lights, preheat the oven, and more. But what exactly is the definition of an IoT device? IoT is shorthand for the Internet of Things, a term used to describe physical objects that transmit data through wireless networks. [1] Fortunately for legal teams, IoT devices are effective in the courtroom as well as the home.

IoT Devices in Court

  • Four years ago in Arkansas, data from an Amazon Echo was used to investigate the death of Victor Collins. When Collins was found dead in his hot tub, his friend James Bates was charged with first-degree murder and evidence tampering. The charges were later dismissed due to reasonable doubt amongst the court. Unfortunately, news sources haven’t disclosed what the voice recordings revealed. [2]
  • After Timothy Burke was accused of shooting his brother, the prosecutor requested the admittance of audios from a Ring doorbell. The defendant objected to its admittance, claiming that it violated New York’s wiretapping and eavesdropping law. The objection was overruled. [3]
  • In an aggravated arson and insurance fraud case, Ross Compton’s guilt was proven by his pacemaker. The man claimed that he packed up his belongings and threw them out the window after discovering the fire. Medical examiners concluded that the pacemaker’s heart rate and cardiac rhythm data disproved Compton’s claims. [4]
  • In State of Wisconsin v. Burch, the defendant was accused of killing her boyfriend. However, the charges were dropped after Fitbit data revealed that Burch had only taken 12 steps in the hours before the death. [5]

Key Considerations

  • Legal teams should explain the significance of IoT data to their clients and evaluate any IoT devices that might be useful.
  • During (or in the prospect of) litigation, disable auto-deletion features on IoT devices.
  • Investigate the reliability of the device’s data.
  • Assess the accessibility of IoT data and the cost of its production. [6]

Conclusion

IoT devices are too valuable to be overlooked in litigation. As demonstrated by the aforementioned court cases, IoT data is quite useful in criminal cases. However, its utility doesn’t stop there. IoT data can also play a significant part in personal injury claims, family law, IP litigation, and more. It would be remiss of litigants to ignore IoT devices during the discovery process. Instead, litigants should consider the relevance and proportionality of IoT devices when drafting their ESI protocol.

 

[1] Brian Morrison and Joann Militano, “E-Discovery for IoT Devices: Primer for Representing Individual Clients,” New York Law Journal, February 1, 2021, https://advance.lexis.com/api/document?collection=legalnews&id=urn:contentItem:61X0-8FG1-JBM3-R471-00000-00&context=1516831.

[2] Erik De La Garza, “Charges Dropped in Amazon Echo Murder Case,” Courthouse News Service, November 29, 2017, https://www.courthousenews.com/charges-dropped-in-amazon-echo-murder-case/

[3] Kimberley Haas, “Judge: Audio from Ring doorbell can be used as evidence in Rochester shooting case,” New Hampshire Union Leader, March 5, 2020, https://www.unionleader.com/news/crime/judge-audio-from-ring-doorbell-can-be-used-as-evidence-in-rochester-shooting-case/article_ee1ddcd1-b193-5ec9-ad9b-08c22fbcdc2f.html

[4] Debra Cassens Weiss, “Data on Man’s Pacemaker Led to His Arrest on Arson Charges,” ABA Journal, February 16, 2017, https://www.abajournal.com/news/article/data_on_mans_pacemaker_led_to_his_arrest_on_arson_charges

[5] Greg Goth. “Can Wearables Testify Against Their Owners?” IEEE Spectrum, Sept. 27, 2021, https://spectrum.ieee.org/wearable-data-court

[6] Briar Morrison and Joann Militano, “E-Discovery for IoT Devices: Primer for Representing Individual Clients.”