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eDiscovery Trends: Metadata Mining Ethics
 

Years ago, I put together a CLE course about metadata awareness and how hidden data (such as tracked changes and comments) can cause embarrassment or even inadvertent disclosures in eDiscovery.  The production of metadata with ESI continues to be a big issue in eDiscovery and organizations need to consider how to handle that metadata (especially if it’s hidden), to avoid issues.

For those who don’t know, metadata can be simply defined as “data about data”, which is to say it’s the data that describes each file and includes information such as when it was created, when it was last modified and who last modified it.  Metadata can often be used in identifying responsive files based on time frame (of creation or last editing) or other criteria.

Many types of files can contain other hidden metadata, such as a record the changes made to a file, who made those changes, and any comments that those parties may have also added (for example, Microsoft Word has Tracked Changes and Comments that aid in collaboration to obtain feedback from one or multiple parties regarding the content of the document).  Embedded objects can also be hidden, for example, depending on how you embed an Excel table into a Word document; the entire Excel file may be accessible within the document, even though only a small part of it is displayed.

Last fall, the American Bar Association published an article with a look at metadata ethics opinions, which was also recently referenced in this article.  The opinions issued to date have focused on three topics with regard to metadata production:

  • The sender's responsibility when transmitting or producing electronic files;
  • The recipient's right to examine (or "mine") files for metadata; and
  • The recipient's duty to notify the sender if sensitive data is discovered.

Sender’s Responsibility

Jurisdictions agree that an attorney sending or producing ESI has a duty to exercise caution to avoid inadvertently disclosing confidential information, though the level of caution required may vary depending upon the jurisdiction and situation.  In SBA Ethics Opinion 07-03, the State Bar of Arizona's Ethics Committee indicated that level of caution may depend upon "the sensitivity of the information, the potential consequences of its inadvertent disclosure, whether further disclosure is restricted by statute, protective order, or confidentiality agreement, and any special instructions given by the client."

Ignorance of technology is no excuse.  The Colorado Bar Association Ethics Committee states that attorneys cannot limit their duty "by remaining ignorant of technology relating to metadata or failing to obtain competent computer support." (CBA Ethics Opinion 119).

Recipient’s Right to Examine

There is less jurisdictional agreement here.  Colorado, Washington D.C. and West Virginia allow metadata mining unless the recipient is aware that the data was sent unintentionally. On the other hand, New York and Maine prohibit metadata mining – the New York State Bar Association's Committee on Professional Ethics based its decision in part on the "strong public policy in favor of protecting attorney-client confidentiality." (NYSBA Opinion 749).  Minnesota and Pennsylvania have not set a bright-line rule, stating that the decision to allow or prohibit metadata mining should depend on the case.

Recipient’s Duty to Notify

Most jurisdictions rely on their local variation of ABA Model Rule of Professional Conduct 4.4(b), which indicates that an attorney who receives confidential data inadvertently sent is obligated to notify the sender.  Maryland is one exception to that position, stating that "the receiving attorney can, and probably should, communicate with his or her client concerning the pros and cons of whether to notify the sending attorney." (MSBA Ethics Docket 2007-09).

Bottom Line

You may not be able to control what a recipient can do with your inadvertently produced metadata, but you can take steps to avoid the inadvertent production in the first place.  Office 2007 and greater has a built in Document Inspector that eliminates the hidden metadata in Office files, while publishing files to PDF will remove some metadata (the amount of metadata removed depends on the settings).  You can also use a metadata “scrubber” application such as Workshare Protect or Metadata Assistant to remove the metadata – most of these will even integrate with email so that you have the option to “scrub” the file before sending.

So, what do you think?  Have you been “stung” by hidden metadata?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Privilege Waived for Produced Servers

If you were at the International Legal Technology Association (ILTA) trade show this past August, you may have noticed a huge unfinished building in the middle of the strip – the Fontainebleau Resort.  It sits idle after financing was pulled, forcing Fontainebleau Las Vegas LLC to file for Chapter 11 bankruptcy in June of 2009.  Naturally, lawsuits followed, between the Term Lenders and Fontainebleau Resort, LLC (FRLLC), the third party parent of Fontainebleau Las Vegas – In re Fontainebleau Las Vegas Contract Litig., (S.D. Fla. Jan 7, 2011)

A company that responded to a third party subpoena and court orders compelling production by handing over three servers to lenders without conducting any relevancy review and without reviewing two of the servers for privileged materials waived privilege for documents on the two servers that were not reviewed.

The parent company of a resort in bankruptcy proceedings was served by lenders to the resort with a subpoena for production of documents. The company did not object to the scope of the subpoena, and the court granted a motion of the lenders to compel production. Counsel for the company then halted work by an e-discovery vendor who had completed screening the company’s email server for responsive documents but had not started a privilege review because of concerns that the company could not pay for the services. Counsel for the company also sought to withdraw from the case, but the company was unable to find new counsel.

Rather than seeking a stay or challenging discovery rulings from the court, the company turned over data from a document server, an accounting server, and an email server. According to the court, the three servers were turned over to the lenders without any meaningful review for relevancy or responsiveness. Despite an agreement with the lenders on search terms for the email server, the company produced a 126 gigabyte disk with 700,000 emails from that server and then, without asking for leave of court, was late in producing a privilege log for data on the email server. The lenders sought direction from the court on waiver of privilege and their obligation if they found privileged materials in the data produced by the company. The company for the first time then raised objections to the burdensomeness of the original subpoena served over six months earlier given the company’s lack of resources or employees to conduct a document review.

The court held that the company “waived the attorney-client privilege and work product protection, and any other applicable privileges, for the materials it produced from two of three computer servers in what can fairly be described as a data dump as part of a significantly tardy response to a subpoena and to court-ordered production deadlines.” The court stated that in effect, the company “took the two servers, which it never reviewed for privilege or responsiveness, and said to the Term Lenders ‘here, you go figure it out.’”

However, because the company prepared a privilege log for the email server, the court added that privileges were not waived for materials from the email server. Also, the lenders were directed to alert the company to any “clearly privileged material they may find during their review of the production on the documents and accounting servers.” Although the court was not ruling on admissibility at trial of that privileged material, the lenders would be allowed to use it during pre-trial preparations, including depositions.

So, what do you think?  Was justice served?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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 Trends: 2011 Predictions — By The Numbers
 

Comedian Nick Bakay”>Nick Bakay always ends his Tale of the Tape skits where he compares everything from Married vs. Single to Divas vs. Hot Dogs with the phrase “It's all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  We’ll have some of our own in the next few days (hey, the longer we wait, the more likely we are to be right!).  However, before stating those predictions, I thought we would take a look at other predictions and see if we can spot some common trends among those, “googling” for 2011 eDiscovery predictions, and organized the predictions into common themes.  I found serious predictions here, here, here, here and here.  Oh, also here and here.

A couple of quick comments: 1) I had NO IDEA how many times that predictions are re-posted by other sites, so it took some work to isolate each unique set of predictions.  I even found two sets of predictions from ZL Technologies, one with twelve predictions and another with seven, so I had to pick one set and I chose the one with seven (sorry, eWEEK!). If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Cloud and SaaS Computing: Six out of seven “prognosticators” indicated that adoption of Software as a Service (SaaS) “cloud” solutions will continue to increase, which will become increasingly relevant in eDiscovery.  No surprise here, given last year’s IDC forecast for SaaS growth and many articles addressing the subject, including a few posts right here on this blog.
  • Collaboration/Integration: Six out of seven “augurs” also had predictions related to various themes associated with collaboration (more collaboration tools, greater legal/IT coordination, etc.) and integration (greater focus by software vendors on data exchange with other systems, etc.).  Two people specifically noted an expectation of greater eDiscovery integration within organization governance, risk management and compliance (GRC) processes.
  • In-House Discovery: Five “pundits” forecasted eDiscovery functions and software will continue to be brought in-house, especially on the “left-side of the EDRM model” (Information Management).
  • Diverse Data Sources: Three “soothsayers” presaged that sources of data will continue to be more diverse, which shouldn’t be a surprise to anyone, given the popularity of gadgets and the rise of social media.
  • Social Media: Speaking of social media, three “prophets” (yes, I’ve been consulting my thesaurus!) expect social media to continue to be a big area to be addressed for eDiscovery.
  • End to End Discovery: Three “psychics” also predicted that there will continue to be more single-source end-to-end eDiscovery offerings in the marketplace.

The “others receiving votes” category (two predicting each of these) included maturing and acceptance of automated review (including predictive coding), early case assessment moving toward the Information Management stage, consolidation within the eDiscovery industry, more focus on proportionality, maturing of global eDiscovery and predictive/disruptive pricing.

Predictive/disruptive pricing (via Kriss Wilson of Superior Document Services and Charles Skamser of eDiscovery Solutions Group respective blogs) is a particularly intriguing prediction to me because data volumes are continuing to grow at an astronomical rate, so greater volumes lead to greater costs.  Creativity will be key in how companies deal with the larger volumes effectively, and pressures will become greater for providers (even, dare I say, review attorneys) to price their services more creatively.

Another interesting prediction (via ZL Technologies) is that “Discovery of Databases and other Structured Data will Increase”, which is something I’ve expected to see for some time.  I hope this is finally the year for that.

Finally, I said that I found serious predictions and analyzed them; however, there are a couple of not-so-serious sets of predictions here and here.  My favorite prediction is from The Posse List, as follows: “LegalTech…renames itself “EDiscoveryTech” after Law.com survey reveals that of the 422 vendors present, 419 do e-discovery, and the other 3 are Hyundai HotWheels, Speedway Racers and Convert-A-Van who thought they were at the Javits Auto Show.”

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

State eDiscovery Rules: Wisconsin Adopts Amendments to Rules for eDiscovery
 

On November 1 of last year, we noted on this blog that Oklahoma had become the latest state to adopt amendments to their Rules of Civil Procedure, leaving only 14 states (including DC) to not have enacted any rules changes that address discovery of ESI as of January 1st of this year.

That’s because on January 1, Wisconsin became the latest state to adopt eDiscovery amendments to their Rules of Civil Procedure.  The amendments affect the following Wisconsin Statutes:

  • §§ 802.10(3)(jm) – Scheduling Order: The scheduling order may address the need for discovery of ESI, which focuses early attention on eDiscovery issues.
  • §§ 804.01(4m) – Discovery Conference: The parties must confer regarding discovery of ESI unless excused by the court (required meet and confer).  The required issues to be discussed include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of proposed discovery (including the extent to which such costs shall be limited).
  • §§ 804.08(3) – Business Records: Parties have the option to produce or allow access to business records in response to an interrogatory.
  • §§ 804.09(1) and (2) – Format of Production: Requesting party may specify “form” of production of ESI and, if no form is requested, information must be produced in the form in which it is ordinarily maintained or in a “reasonably usable form”.
  • §§ 804.12(4m) – Safe Harbor: Contains a safe harbor provision to protect a party who destroys information in good faith according to a routine records retention policy.
  • §§ 805.07(2) – Subpoena: Protect parties from the unreasonable burden of responding to subpoenas asking for ESI by enabling the producing party to produce information in the form in which it is ordinarily maintained or in a “reasonably usable form” and also by permitting testing or sampling of the information instead of inspection of copying.

The required meet and confer provision – §§ 804.01(4m) – was adopted, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory meet and confer rule.  The strong dissent expressed the concern that the requirement “has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation” and noted that, unlike the federal courts, Wisconsin state courts “do not have many cases involving a large number of documents and electronic discovery disputes” and that such a rule would “impose ‘significant added burden on litigants while yielding little benefit.'”  It concluded with a call to “judges, lawyers, and litigants from around the state to monitor this new mandate, and if it is not working, [to] petition the court for change.”

So, what do you think?  Wondering where your state stands?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Crispin v. Christian Audigier Inc.

Yesterday, we took a look at “Major Tours, Inc. v. Colorel”, which addresses whether a party may obtain a Protective Order relieving it of the duty to access backup tapes, even when that party’s failure to issue a litigation hold resulted in the data only being available on those backup tapes.

Discoverability of social media content has been a big topic this year, with several cases addressing the issue, including this one, previously discussed on eDiscovery Daily.  The holiday week look back at cases concludes with Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010), which addresses whether ‘private’ data on social networks is discoverable.

This copyright infringement claim brought by artist Buckley Crispin against defendant and designer Christian Audigier, alleges that Audigier used artwork outside the scope of the original oral license between the parties and also sub-licensed the artwork to other companies and individuals (named as co-defendants) without Crispin’s consent.  The defendants served subpoenas on social media providers Facebook, MySpace, and Media Temple, directing them to turn over all communications between Crispin and Audigier, as well as any communications referencing the co-defendants.

Crispin sought to quash the subpoenas, arguing that they sought private electronic communications protected under the Stored Communications Act of 1986 (SCA), prohibiting Electronic Communication Services (ECS) and Remote Computing Services (RCS) providers from turning over those communications, but the motion was denied because Magistrate Judge John E. McDermott determined that Facebook, MySpace, and Media Temple did not qualify for protection from disclosure under the SCA.  Crispin moved for reconsideration with the U.S. District Court for the Central District of California.

District Court Judge Margaret Morrow’s decision partially reversed and partially vacated Judge McDermott’s order, finding that the SCA’s protections (and associated discovery preclusions) include at least some of the content hosted on social networking sites, including the private messaging features of social networking sites protected as private email.  She also concluded that because Facebook, MySpace, and Media Temple all provide private messaging or email services as well as electronic storage, they all qualify as both ECS and RCS providers, with appropriate SCA protections.

However, regarding Facebook wall postings and MySpace comments, Judge Morrow determined that there was insufficient evidence to determine whether these wall postings and comments constitute private communications as the user’s privacy settings for them were less clear and ordered a new evidentiary hearing regarding the portions of the subpoenas that sought those communications.

This opinion sets a precedent that, in future cases, courts may allow protection to social networking and web hosting providers from discovery based on SCA protections as ECS and RCS providers and may consider social media ESI protected, based on the provider’s privacy controls and the individual user’s privacy settings.

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy New Year from all of us at Trial Solutions and eDiscovery Daily!

eDiscovery Case Law: Major Tours v. Colorel

Yesterday, we took a look at “Rajala v. McGuire Woods”, Judge David Waxse’s opinion regarding the applicability of Federal Rule of Evidence 502(d) and (e) in McGuire Woods’ request for a clawback provision for privileged documents.

The holiday week look back at cases continues with Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010), which addresses whether a party may obtain a Protective Order relieving it of the duty to access backup tapes, even when that party’s failure to issue a litigation hold resulted in the data only being available on those backup tapes.

Major Tours appealed a 2009 Magistrate Judge’s order concluding that certain backup tapes were not reasonably accessible under Rule 26(b)(2)(B) and that the plaintiffs had not shown good cause to require their production under the seven factor test set forth in the Advisory Committee Notes to Rule 26(b)(2)(B). The Magistrate Judge made this determination despite finding that the defendant, Michael Colorel, had not instituted adequate litigation hold notices until several years after the duty to preserve had attached.

Upon appeal to U.S. District Court Judge Jerome Simandle, Major Tours claimed that the Magistrate Judge had not given “appropriate weight to the defendants’ culpability for the emails being inaccessible, given that the reason for the increased cost of recovery was the defendants’ failure to institute a timely and effective litigation hold.” and also argued that a party cannot rely on Rule 26(b)(2)(B) if that party’s negligence caused the inaccessibility of the requested data in the first place.

Judge Simandle first addressed “whether, as a matter of law, a protective order under Rule 26(b)(2)(B) can ever be granted to a party when the evidence is inaccessible because of that party’s failure to institute a litigation hold” and concluded that “no such bright line rule exists.”, finding that Colorel’s culpability in failing to preserve the information did not override application of the multi-factor good cause test under Rule 26(b)(2)(B). Judge Simandle cited the decision in Disability Rights Council of Greater Washington v. Washington Metropolitan Transit, 242 F.R.D. 139 (D.D.C. 2007), in which Magistrate Judge John M. Facciola considered the same issue and “concluded that the proper approach was to balance the defendants’ culpability as one factor in the seven factor analysis.”  Judge Simandle noted that “The Rules compel exactly this discretionary balancing of costs and benefits of discovery, not a bright line requirement of production, no matter how burdensome, how likely to succeed, or how necessary to the litigation, if a party fails to adequately preserve every byte of previously accessible data.”

As to whether the magistrate judge adequately considered defendants’ culpability, Judge Simandle found that he did and affirmed his order, noting that considering the volume of evidence produced by Colorel, the backup tapes were “likely to produce evidence of only marginal, cumulative benefit and at great expense” and that “this outweighed the slim likelihood of the discovery of non-cumulative evidence even if there was some unknown degree of negligent spoliation.”

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Myth of SaaS Insecurity Finally Busted

Eleven years ago, when I first began talking to attorneys about hosting document collections online to manage the review and production process for discovery, the typical response that I got was “I would never consider putting my client’s documents online – it’s just not secure”.  Let’s face it – lawyers are not exactly early adopters of technology… 😉

These days, few folks seem to have that concern any more when it comes to putting sensitive data and documents online.  Many people bank online, buy items from Amazon and other “etailers”, share pictures and other personal information on Facebook, etc.  As for business data, SalesForce.com has become the top customer relationship management (CRM) application and many business users are using Google Docs to share documents with colleagues, as just two examples.

What do all of these applications have in common?  They are Software as a Service (SaaS) applications, delivering data and functionality via an online application.  As noted previously on this blog, a new IDC study forecasts the SaaS market to reach $40.5 billion by 2014, an annual growth rate of 25.3%.  Also by 2014, about 34% of all new business software purchases will be via SaaS applications, according to IDC.

SaaS review applications have also become increasingly popular in eDiscovery with several eDiscovery SaaS applications available that provide benefits including: no software to install, intuitive browser-based interfaces and ability to share the collection with your client, experts, and co-counsel without distributing anything more than a login.

As for security concerns, most litigators have come to accept that these systems are secure.  But, do they realize just how secure they are?

As an example, at Trial Solutions, the servers hosting data for our OnDemand® and FirstPass™ (powered by Venio FPR™) platforms are housed in a Tier 4 data center in Houston (which is where our headquarters is).  The security at this data center is military grade: 24 x 7 x 365 onsite security guards (I feel sorry for the folks who have to work this Saturday!), video surveillance, biometric and card key security required just to get into the building.  Not to mention a building that features concrete bollards, steel lined walls, bulletproof glass, and barbed wire fencing.  And, if you’re even able to get into the building, you then have to find the right server (in the right locked room) and break into the server security.  It’s like the movie Mission Impossible where Tom Cruise has to break into the CIA, except for the laser beams over the air vent (anyone who watches movies knows those can be easily thwarted by putting mirrors over them).  To replicate that level of security infrastructure would be cost prohibitive for even most large companies.

From the outside, SaaS applications secure data with login authentication and Secured Sockets Layer (SSL) encryption.  SSL encryption is like taking a piece of paper with text on it, scrambling the letters on that piece of paper and then tearing it up into many pieces and throwing the scraps into the wind.  To intercept a communication (one request to the server), you have to intercept all of the packets of a communication, then unscramble each packet individually and then reassemble them in the correct order.

Conversely, desktop review application data could be one stolen laptop away from being compromised.  No wonder why nobody talks about security concerns anymore with SaaS applications.

So, what do you think?  How secure is your document collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Holidays from all of us at Trial Solutions and eDiscovery Daily!

eDiscoveryJournal Webinar: More on Native Format Production and Redaction

As noted yesterday, eDiscoveryJournal conducted a webinar last Friday with some notable eDiscovery industry thought leaders regarding issues associated with native format production and redaction, including George Socha, Craig Ball and Tom O’Connor, and moderated by Greg Buckles, co-founder of eDiscoveryJournal, who has over 20 years experience in discovery and consulting.

What follows is more highlights of the discussion, based on my observations and notes from the webinar.  If anyone who attended the webinar feels that there are any inaccuracies in this account, please feel free to submit a comment to this post and I will be happy to address it.

More highlights of the discussion:

  • Redaction – Is it Possible, Practical, Acceptable?: George said it’s certainly possible and practical, but the biggest problem he sees is that redaction is often done without agreement between parties as to how it will be done.  Tom noted that the knee jerk reaction for most of his clients is “no” – to do it effectively, you need to know your capabilities and what information you’re trying to change.  Craig indicated that it’s not only possible and practical, but often desirable; however, when removing information such as columns from databases or spreadsheets, you need to know data dependencies and the possibility of “breaking” the file by removing that data.  Craig also remarked that certain file types (such as Microsoft Office files) are now stored in XML format, making it easier to redact them natively without breaking functionality.
  • How to Authenticate Redacted Files based on HASH Value?:  Craig said you don’t – it’s a changing of the file.  Although Craig indicated that some research has been done on “near-HASH” values, George noted that there is currently no such thing and that the HASH value changes completely with a change as small as one character.  Tom noted that it’s “tall weeds” when discussing HASH values with clients to authenticate files as many don’t fully understand the issues – it’s a “where angels fear to tread” concern.
  • Biggest Piece of Advice Regarding Redaction?: Craig said that redaction of native files is hard – So what?  Is the percentage of files requiring redaction so great that it needs to drive the process?  If it’s a small percentage, you can always simply TIFF the files requiring redaction and redact the TIFFs.  George indicated that one of the first things he advises clients to do is to work with the other side on how to handle redactions and if they won’t work with you, go to the judge to address it.  Tom indicated that he asks the client questions to find out what issues are associated with the redaction, such as what the client wants to accomplish, percentage of redaction expected, etc. and then provides advice based on those answers.
  • Redaction for Confidentiality (e.g., personal information, trade secrets, etc.): George noted that, while in many cases, it’s not a big issue; in some cases, it’s a huge issue.  There are currently 48 states that have at least some laws regarding safeguarding personal information and also efforts underway to do so at a national level.  We’re a long way from coming up with an effective way to address this issue.  Craig said that sometimes there are ways to address programmatically – in one case where he served as special master, his client had a number of spreadsheets with columns of confidential data and they were able to identify a way to handle those programmatically.  Tom has worked on cases where redaction of social security numbers through search and replace was necessary, but that there was a discussion and agreement with opposing counsel before proceeding.
  • How to Guarantee that Redaction Actually Deletes the Data and Doesn’t Just Obscure it?: Tom said he had a situation on a criminal case where they received police reports from the Federal government with information on protected witnesses, which they gave back.  There is not a “cookie-cutter” approach, but you have to understand the data, what’s possible and provide diligent QC.  Craig indicated that he conducts searches for the redacted data to confirm it has been deleted.  Greg noted that you have to make sure that the search tool will reach all of the redacted areas of the file.  George said too often people simply fail to check the results – providers often say that they can’t afford to perform the QC, but law firms often don’t do it either, so it falls through the cracks.  Tom recommends to his law firm clients that they take responsibility to perform that check as they are responsible for the production.  As part of QC, it’s important to have a different set of eyes and even different QC/search tools to confirm successful redaction.

Thanks to eDiscoveryJournal for a very informative webinar!

So, what do you think?  Do you have any other questions about native format production and redaction?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscoveryJournal Webinar: Debate on Native Format Production and Redaction
 

eDiscoveryJournal conducted a webinar last Friday with some notable eDiscovery industry thought leaders regarding issues associated with native format production and redaction.  The panel included George Socha of Socha Consulting, LLC and co-founder of EDRM, Craig Ball of Craig D. Ball, P.C. and author of numerous articles on eDiscovery and computer forensics, and Tom O’Connor, who is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  All three panelists are nationally recognized speakers and experts on eDiscovery topics.  The panel discussion was moderated by Greg Buckles, co-founder of eDiscoveryJournal, who is also a recognized expert with over 20 years experience in discovery and consulting.

I wrote an article a few years ago on review and production of native files, so this is a subject of particular interest to me.  What follows is highlights of the discussion, based on my observations and notes from the webinar.  If anyone who attended the webinar feels that there are any inaccuracies in this account, please feel free to submit a comment to this post and I will be happy to address it.

Having said that, here are the highlights:

  • Definition of Native Files: George noted that the technical definition of native files is “in the format as used during the normal course of business”, but in the application of that concept, there is no real consensus.  Tom, who has worked on a number of multi-party cases has found consensus difficult as parties have different interpretations as to what defines native files.  Craig noted that it’s less about format than it is ensuring a “level of information parity” so that both sides have the opportunity to access the same information for those files.
  • “Near-Native” Files: George noted that there is a “quasi-native” or “near-native” format, which is still a native format, even if it isn’t in the original form.  If you have a huge SQL database, but only produce a relevant subset out of it in a smaller SQL database, that would be an example of a “near-native” format.  Individual Outlook MSG files are another example that, as Craig noted, are smaller components of the original Outlook mailbox container for which individual message metadata is preserved.
  • Position of Producing Native Files: Craig noted that the position is often to provide in a less usable format (such as TIFF images) because of attorneys’ fear that the opposition will be able to get more information out of the native files than they did.  George noted that you can expect expert fees to double or even quadruple when expecting them to work with image files as opposed to native files.
  • Negotiation and Production of Metadata: Tom noted that there is a lack of understanding by attorneys as to how metadata differs for each file format.  Craig noted that there is certain “dog tag” metadata such as file name, path, last modified date and time, custodian name and hash value, that serve as a “driver’s license” for files whereas the rest of the more esoteric metadata complete the “DNA” for each file.  George noted that the EDRM XML project is working towards facilitating standard transfer of file metadata between parties.
  • Advice on Meet and Confer Preparation: When asked by Greg what factor is most important when preparing for meet and confer, Craig said it depends partly on whether you’re the primary producing or requesting party in the case.  Some people prefer “dumbed down” images, so it’s important to know what format you can handle, the issues in the case and cost considerations, of course.  George noted that there is little or no attention on how the files are going to be used later in the case at depositions and trial and that it’s important to think about how you plan to use the files in presentation and work backward.  Tom noted it’s really important to understand your collection as completely as possible and ask questions such as: What do you have?  How much?  What formats?  Where does it reside?  Tom indicated that he’s astonished how difficult it is for many of his clients to answer these questions.

Want to know more?  Tune in tomorrow for the second half of the webinar!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Reporting from the EDRM Mid-Year Meeting
 

Launched in May 2005, the Electronic Discovery Reference Model (EDRM) Project was created to address the lack of standards and guidelines in the electronic discovery market.  Now, in its sixth year of operation, EDRM has become the gold standard for…well…standards in eDiscovery.  Most references to the eDiscovery industry these days refer to the EDRM model as a representation of the eDiscovery life cycle.

At the first meeting in May 2005, there were 35 attendees, according to Tom Gelbmann of Gelbmann & Associates, co-founder of EDRM along with George Socha of Socha Consulting LLC.  Check out the preliminary first draft of the EDRM diagram – it has evolved a bit!  Most participants were eDiscovery providers and, according to Gelbmann, they asked “Do you really expect us all to work together?”  The answer was “yes”, and the question hasn’t been asked again.  Today, there are over 300 members from 81 participating organizations including eDiscovery providers, law firms and corporations (as well as some individual participants).

This week, the EDRM Mid-Year meeting is taking place in St. Paul, MN.  Twice a year, in May and October, eDiscovery professionals who are EDRM members meet to continue the process of working together on various standards projects.  EDRM has eight currently active projects, as follows:

  • Data Set: provides industry-standard, reference data sets of electronically stored information (ESI) and software files that can be used to test various aspects of eDiscovery software and services,
  • Evergreen: ensures that EDRM remains current, practical and relevant and educates about how to make effective use of the Model,
  • Information Management Reference Model (IMRM): provides a common, practical, flexible framework to help organizations develop and implement effective and actionable information management programs,
  • Jobs: develops a framework for evaluating pre-discovery and discovery personnel needs or issues,
  • Metrics: provides an effective means of measuring the time, money and volumes associated with eDiscovery activities,
  • Model Code of Conduct: evaluates and defines acceptable boundaries of ethical business practices within the eDiscovery service industry,
  • Search: provides a framework for defining and managing various aspects of Search as applied to eDiscovery workflow,
  • XML: provides a standard format for e-discovery data exchange between parties and systems, reducing the time and risk involved with data exchange.

This is my fourth year participating in the EDRM Metrics project and it has been exciting to see several accomplishments made by the group, including creation of a code schema for measuring activities across the EDRM phases, glossary definitions of those codes and tools to track early data assessment, collection and review activities.  Today, we made significant progress in developing survey questions designed to gather and provide typical metrics experienced by eDiscovery legal teams in today’s environment.

So, what do you think?  Has EDRM impacted how you manage eDiscovery?  If so, how?  Please share any comments you might have or if you’d like to know more about a particular topic.