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eDiscovery Case Study: Term List Searching for Deadline Emergencies!
 

A few weeks ago, I was preparing to conduct a Friday morning training session for a client to show them how to use FirstPass™, powered by Venio FPR™, to conduct a first pass review of their data when I received a call from the client.  “We thought we were going to have a month to review this data, but because of a judge’s ruling in the case, we now have to start depo prep for two key custodians on Monday for depositions now scheduled next week”, said Megan Moore, attorney with Steele Sturm, PLLC, in Houston.  “We have to complete our review of their files this weekend.”

So, what do you do when you have to conduct both a first pass and final review of the data in a weekend?

It was determined that Steele Sturm had to complete first pass review that Friday, so that we could prepare the potentially responsive files for an attorney review starting Saturday morning.  Steele Sturm identified a list of responsive search terms and Trial Solutions worked with the attorneys to include variations of the terms (such as proximity searches and synonyms) to finalize a list of terms to apply to the data to identify potentially responsive files.  Because FirstPass provides the ability to import and search an entire term list at once, we were able to identify potentially responsive files in a simple, two step process.  “Using FirstPass, Trial Solutions helped us cull out 75% of the collection as non-responsive, enabling our review team to focus review on the remaining 25%”, said Moore.

Once the potentially responsive files were identified, they were imported into OnDemand™, powered by ImageDepot™, for linear attorney review.  During review, the attorneys identified that some of the terms used in identifying potentially responsive files were overbroad, so additional searches were performed in OnDemand to “group tag” those files as non-responsive.  “Trial Solutions provided training and support throughout the weekend to enable our review team to quickly "tag" each file using OnDemand as to responsiveness and privilege to enable us to meet our deadline”, said Moore.

So, what do you think?  Do you have any “emergency” war stories to share?  Please share any comments you might have or if you’d like to know more about a particular topic.

First Pass Review: Domain Categorization of Your Opponent’s Data

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass™, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production. One way to analyze that data is through “fuzzy” searching to find misspellings or OCR errors in an opponent’s produced ESI.

Domain Categorization

Another type of analysis is the use of domain categorization. Email is generally the biggest component of most ESI collections and each participant in an email communication belongs to a domain associated with the email server that manages their email.

FirstPass supports domain categorization by providing a list of domains associated with the ESI collection being reviewed, with a count for each domain that appears in emails in the collection. Domain categorization provides several benefits when reviewing your opponent’s ESI:

  • Non-Responsive Produced ESI: Domains in the list that are obviously non-responsive to the case can be quickly identified and all messages associated with those domains can be “group-tagged” as non-responsive. If a significant percentage of files are identified as non-responsive, that may be a sign that your opponent is trying to “bury you with paper” (albeit electronic).
  • Inadvertent Disclosures: If there are any emails associated with outside counsel’s domain, they could be inadvertent disclosures of attorney work product or attorney-client privileged communications. If so, you can then address those according to the agreed-upon process for handling inadvertent disclosures and clawback of same.
  • Issue Identification: Messages associated with certain parties might be related to specific issues (e.g., an alleged design flaw of a specific subcontractor’s product), so domain categorization can isolate those messages more quickly.

In summary, there are several ways to use first pass review tools, like FirstPass, for reviewing your opponent’s ESI production, including: email analytics, synonym searching, fuzzy searching and domain categorization. First pass review isn’t just for your own production; it’s also an effective process to quickly evaluate your opponent’s production.

So, what do you think? Have you used first pass review tools to assess an opponent’s produced ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

First Pass Review: Fuzzy Searching Your Opponent’s Data

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass™, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production. One way to analyze that data is through synonym searching to find variations of your search terms to increase the possibility of finding the terminology used by your opponents.

Fuzzy Searching

Another type of analysis is the use of fuzzy searching. Attorneys know what terms they’re looking for, but those terms may not often be spelled correctly. Also, opposing counsel may produce a number of image only files that require Optical Character Recognition (OCR), which is usually not 100% accurate.

FirstPass 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 the term “petroleum”, you can find variations such as “peroleum”, “petoleum” or even “petroleom” – misspellings or OCR errors 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 OCR errors and FirstPass provides a terrific capability to select those variations to review additional potential “hits” in your collection.

Tomorrow, I’ll talk about the use of domain categorization to quickly identify potential inadvertent disclosures and weed out non-responsive files produced by your opponent, based on the domain of the communicators. Hasta la vista, baby!  🙂

In the meantime, what do you think? Have you used fuzzy searching to find misspellings or OCR errors in an opponent’s produced ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

First Pass Review: Synonym Searching Your Opponent’s Data

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass™, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production. One way to analyze that data is through email analytics to see the communication patterns graphically to identify key parties for deposition purposes and look for potential production omissions.

Synonym Searching

Another type of analysis is the use of synonym searching. Attorneys understand the key terminology their client uses, but they often don’t know the terminology their client’s opposition uses because they haven’t interviewed the opposition’s custodians. In a product defect case, the opposition may refer to admitted design or construction “mistakes” in their product or process as “flaws”, “errors”, “goofs” or even “flubs”. With FirstPass, you can enter your search term into the synonym searching section of the application and it will provide a list of synonyms (with hit counts of each, if selected). Then, you can simply select the synonyms you wish to include in the search. As a result, FirstPass identifies synonyms of your search terms to broaden the scope and catch key “hits” that could be the “smoking gun” in the case.

Tomorrow, I’ll talk about the use of fuzzy searching to find misspellings that may be commonly used by your opponent or errors resulting from Optical Character Recognition (OCR) of any image-only files that they produce. Stay tuned! 🙂

In the meantime, what do you think? Have you used synonym searching to identify variations on terms in an opponent’s produced ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

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.

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.

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.