Production

The Challenges of Modern Discovery – CloudNine Webinar

In the past, attorneys relied on printed pages and forensic imaging to produce and review traditional documents. Neither method is capable of telling the whole story. By treating data as documents, legal teams are unable to draw context from metadata, families, and threads. Static documents also don’t permit the deduplication or isolation of messages at the individual level. These shortcomings lead to slowed review speeds, excessive redactions, and the loss of relevant information.

Since then, the eDiscovery landscape has broadened to encompass modern data types such as text, geolocation, and social media data. When exported by other eDiscovery providers, the data is displayed in unwieldy spreadsheets and JSON files. Lawyers who opt to export modern data face many of the same challenges as they would with traditional discovery measures. As an alternative, a lawyer may try to produce modern ESI in the form of screenshots. Screenshots are mistakenly viewed as an easier production form because they offer clear images of conversations and provide details such as contact names and messaging times. However, several judges have rejected their admission in court due to authenticity concerns. Nowadays, it’s very easy to fabricate text conversations.

As the amount of modern ESI grows, developing an efficient and defensible discovery process becomes paramount. Rob Lekowski and Rick Clark from the CloudNine team joined Kevin Thompson from the Chicago Bar Association to discuss how CloudNine ESI Analyst uniquely tackles the pitfalls of modern discovery. Rob and Rick also provided insight into common questions such as:

  • How should legal teams deal with deleted documents?
  • What are the estimated costs and duration times for small, medium, and big cases?
  • Can you still collect evidence with CloudNine ESI Analyst if you don’t have access to the physical device?
  • How should an attorney negotiate keyword searches with opposing counsel?

To learn how to process and review modern data types in a single platform, watch the webinar here.

How to Redact Without Regrets

Safeguarding a client’s personal information is an important responsibility. Redactions protect client privacy by obscuring confidential, privileged, non-responsive, and personally identifiable information from relevant documents. [1] Though important, redactions are a time-consuming part of the review process, especially when done manually. To save time, legal teams should conduct an initial assessment of what, when, and where redactions should be placed. As a first step, examine the nature of the case and discovery. In other words, identify the tools and file types that will be included in the review process. When considering which redaction tool to use, refer back to the guidelines set by the ESI protocol and protective order. The sophistication of both parties can also impact the accessibility of digital redaction technology. [2] Overall, redactions should not be taken lightly. Mistakes often embarrass or endanger the client’s safety. Other ramifications may include waived attorney-client privilege, malpractice lawsuits, suspension, and even disbarment.

Redaction Failures

  • In January 2019, Paul Manafort’s pleadings were filed as PDF documents containing portions of blacked-out text. By copying and pasting the PDF into a different text document, people were able to see the improperly hidden text. Consequently, the court learned of Manafort’s exchanges with Konstantin Kilimnik, an alleged Russian intelligence agent.
  • In a 2018 legal battle with an app called Six4Three, Facebook’s lawyers failed to obscure sensitive information from a PDF file. The mistake revealed that Facebook considered giving user data to Six4Three in exchange for financial compensation.
  • In August 2018, the United States Postal Service was tasked with producing a civilian personnel file of Congresswoman Abigail Spanberger. In compliance with the Freedom of Information Act, USPS successfully produced the file but failed to redact any of her personal information. Information disclosed in the file included Spanberger’s SF-86 security clearance application, social security number, and responses to personal background questions. [3]

Redaction Mistakes to Avoid

  • Don’t simply change the font to white. Though the words look like they have disappeared, they can be seen when highlighted.
  • Don’t hide black text with black highlights. Similar to the white font problem, black highlight looks like it hides black text. However, the information will show when a mouse is clicked and dragged over it.
  • Don’t forget about the metadata! Metadata from word-processing programs contains information about text changes and deletions. Unless purged from the document, this information can be found even after the file is re-saved or converted to a PDF.
  • Don’t rely on Adobe Acrobat edits to black-out or remove text. These edits can be removed if the information is copied and pasted into a different document. [4]

 

[1] Rachel Teisch, “Death, Taxes, and Redaction Blunders,” EDRM, February 4, 2022.

[2] Clara Skorstad, “Right on Redactions,” JD Supra, November 4, 2020.

[3] “Getting Redactions Right Matters Now More Than Ever,” Warner Norcross + Judd, November 12, 2019.

[4] “Best Practices: Redaction of Information,” United States District Court, Southern District of Alabama.

Problems and Solutions for Slack Discovery

The Discoverability of Slack

As people turned to remote work in 2020, collaboration apps became a prevalent form of communication. Slack was so popular that some considered it to be the “new email.” Though some legal teams refute its discoverability, the FRCP intentionally established a broad definition of ESI to accommodate new data types. From corporate files to humorous GIFS and standard channel messages, Slack is a medium for large quantities of information. Thus, the application fits the requirements for discoverable digital evidence.[1] Accessing and producing that information, however, can present several challenges.

Production Problems

  1. Hundreds of Slack messages are sent every day.

Medium and large-scale corporations with active Slack users easily send over 100,000 Slack messages per month. Additionally, Slack generates a new file per day for each channel. Examinations of big data are slow and expensive. By proactively identifying specific channels to preserve, litigants can reduce production costs and time.[2]

  1. Slack is only one of many hosts for decentralized communications.

Nowadays, a single conversation can span multiple platforms. For example, if an employee asks their boss a question through email, they may hold a Zoom meeting to discuss it. After the Zoom meeting, they might use Slack to address any follow-up questions. Since the conversation was spread out, the snippet captured on Slack will lack the full context.

  1. Deciphering Slack exports can be difficult.

Slack messages are exported through JSON files, a format that’s a bit hard to understand. Additionally, the files don’t visually display media such as emojis and GIFS. In response to this problem, legal teams may opt to use screenshots as an alternative production method. However, the application only allows users to view and sort through the most recent 10,000 messages.[3]

Tips to Keep in Mind

  • Educate your employees or legal team about Slack’s retention policies.
  • If possible, consider upgrading to Slack’s premium version so that there is no message history limit.
  • Find an eDiscovery solution that will export Slack data in a thorough and understandable format.
  • Avoid preserving unneeded data by identifying which channels are more important than others.[4]

 

[1] Peter Callaghan, “Is Slack Content Discoverable? Yes It (Definitely) Is,” Pagefreezer, https://blog.pagefreezer.com/slack-content-is-discoverable

[2] Matthew Verga, “Discovery from Slack: It’s Complicated,” Xact Data Discovery, June 19, 2020, https://xactdatadiscovery.com/articles/discovery-from-slack-its-complicated/

[3] James Murphy, “The Shark in the Wave: Revealing the Lurking Danger of Slack Data,” Corporate Compliance Insights, June 17, 2019, https://www.corporatecomplianceinsights.com/the-shark-in-the-wave-revealing-the-lurking-danger-of-slack-data/

[4] James Murphy, “The Shark in the Wave: Revealing the Lurking Danger of Slack Data.”

Data Processing: The Key To Expanding Your LSP’s Bottom Line

Ask any legal service provider (LSP) about how they can increase their revenue and you’ll undoubtedly get a variety of answers, such as:

  • Go paperless
  • Use different fee structures
  • Fire non paying clients
  • Automate labor intensive tasks

While opportunities vary depending on a variety of factors, one consistent challenge you might come across is setting aside the time to explore any new possibilities. Freeing up time will allow your LSP to grow in new and unexpected ways and give your organization the flexibility to adapt to unforeseen demands.

All you have to do is find ways to increase your productivity and the easiest way to do this is through new technology. In fact, many law firms are already headed in this direction:

  • 53% of law firms think technology will boost their revenue by allowing them to offer better services.
  • 65% of law firms increased their technology investments in 2019.
  • 25% of tech budgets were allocated to ‘innovative technologies.’

Where’s the best place to start?  Simple. You need to streamline your data processing workflows.

 

Common Data Processing Challenges You Might Encounter

Not all data processing tools are designed equally. There are some that present their own unique challenges that could hinder your ability to meet your true potential.

In order to streamline and free up your LSP’s time, keep the following in mind when looking at potential data processing tools:

  • Can you edit and add newly discovered fields?
    • Having the flexibility to edit and add newly discovered fields will prevent your team from having to review data over and over again.
  • Should every piece of data be pushed to the review platform?
    • If every piece of data is pushed to the eDiscovery review platform, your LSP may have to pay higher hosting fees.
  • Is the data stored in a public cloud-based environment?
    • Storing data in the public cloud could cause your organization to lose control of the data and hosting costs.
  • Can you filter out data with a true NIST list?
    • This provides your organization insight into another level of data that doesn’t need to be reviewed, and sometimes, can be used to inflate your case.

Some companies charge $15 per GB per month to host your data in a public cloud environment. That doesn’t give you much room to work with when offering the best deal with your clients.

The alternative? Hosting your data in the private cloud allows you to have more control over hosting costs, which allows you to boost your bottom line. Having a data management tool in place will grant your LSP the data control and security you need.  For even more ways to build value with CloudNine, download our eBook: 4 Ways Legal Service Providers Can Build Value and Boost Margins.

The Perks of Being an Efficient Data Processing Tool

Storing your raw data on-prem or in a private cloud lets you control your hosting costs, often dropping the cost down to less than $1 per GB per month. This allows you to reasonably mark up your hosting costs, boosting your bottom line while still providing good value for your clients.

Determining the efficiency of a data processing tool comes down to two factors:

  1. How you’re using the eDiscovery tool
  2. Your data size

The more data you have, the longer it will take to process. Setting up your data processing engine to perform top-level culls removes duplicative or irrelevant data before your even begin. This cuts down on the amount of data pushed further down the line within the workflow.

An efficient data processing tool allows for more automation, allowing you to work on other tasks and optimizing your employee’s time on the clock.

A truly efficient tool allows you to set alerts that let you or the next person in the workflow know when processing is complete. This means you don’t have to have anyone sitting there, watching and waiting for the system to complete its task.

 

How CloudNine Explore Can Save You Time and Money

In many cases, CloudNine Explore saves you approximately 30% of your costs associated with the interaction between your data and your team. If you are asking how that is possible, we break down 4 money-saving tips in our latest eBook.

Through our data culling functionality that removes duplicate data points, we reduce the amount of data you send to review.

Plus, other platforms make a copy of your data as you expand it, creating duplicative and irrelevant data that you have to pay to store. In CloudNine Explore, your data is only expanded after it’s culled and filtered, removing irrelevant data along the way. It’s only then that your data is copied and exported to your review platform.

By reducing this initial data size, you save hosting costs and time further down the workflow process.

  • Analyze your data quicker
  • Process your data more efficiently
  • Speed up decision-making processes

If you’re ready to utilize eDiscovery law software to improve your data process efficiencies so you have more time and money to explore new, alternative revenue streams, let CloudNine help you. Sign up for our free demo today.

 

Evaluate a Proven Approach to eDiscovery and Data Processing with CloudNine Explore

The digital age has had a major impact on more than just how we occupy our free time. It’s also changed the way we review and process legal data.  

 Lawyers and paralegals handle much more than the physical evidence of discovery. Most law firms sift through unprecedented volumes of evidence that come with the digital age. 

 

When Data Volumes Exceed Capacity: Controlling The Ever Growing Amount of Data

Legal service providers (LSPs) review and process massive sets of complex and diverse digital content oftentimes, in the terabytes. For context, consider this comparison of data:

  • 1 MB = a 400-page book
  • 1 GB = over a thousand 400-page books
  • 1 TB = more than a million 400-page books

Faced with this overwhelming volume of data, an eDiscovery solution capable of working at a high speed and top-of-the-line accuracy will equip you to fight your cases with maximum efficiency. 

Reaping the Benefits Out of Cloud-Based Discovery Software

You can also lose control of your data in expensive cloud platforms. You’re completely dependent on THEIR solution, as they hold your data hostage indefinitely, at whatever rates they set.  Plus, if an eDiscovery solution doesn’t have the capacity to scale with your ever-increasing data needs or carry the solutions you need, you can suffer from ineffective workflow functionality. 

Your organization needs an eDiscovery solution that provides you with:

  • A great degree of workflow flexibility with on-premise and cloud solutions
  • The ability to add new fields, as needed
  • The power to flex up and down the data storage as you consume, allowing you to only pay for what you need
  • The process of continuous improvement in regards to their data processing engine

With a cloud-based eDiscovery solution capable of handling the volume and variety of data you have in addition to the functionality and features you need, you will be able to work efficiently.

 

Evaluating The CloudNine Explore Solution

As the industry leader for processing eDiscovery data, CloudNine Explore is based on four key components:

  • Explore
  • Assess
  • Protect
  • Deliver

Explore:  

CloudNine Explore helps you navigate your way through massive volumes of data to identify risk, determine the scope of the project and control your costs. This helps you uncover important information about the data before you begin:

  • How much data is there?
  • What type of data has been collected?
  • What languages are included in the data?
  • What data is hidden from view?
  • Where did the data come from?

Knowing this information will help you evaluate the risk and potential cost of litigation at the earliest possible point.   This knowledge enables you to set more realistic costs to process and store the data, as well as to determine the size of your review team and necessary skill sets. 

Assess:  

With CloudNine Explore, you can inspect and review your data using both automated and manual processes. When you receive hundreds of thousands of documents and files through eDiscovery, you need to be able to process through it quickly and efficiently. CloudNine Explore’s multi-threaded, multi-core indexing functionality helps you filter through your exported data faster so you can pull only the data you need. 

Being thoughtful about your research and using specific keyword search terms to promote specific documents, helps you filter out data like specific email domain names for later review.

Protect:  

If the integrity of your data is compromised, lost, distorted or manipulated, the consequence can be devastating to your case. 

CloudNine Explore allows you to securely upload, ingest and preserve all relevant data for your ongoing investigations or litigation with an easier and more efficient eDiscovery platform.

All your data is stored securely in a single, on-prem location, housed safely behind the firewall. This safety net saves money while giving you direct access to your data so you know exactly where it is at all times.

Deliver:  

Sharing discovered assets with the opposing side for review is more than a courtesy, it’s required.  CloudNine Explore makes it easy to provide information as required for legal production or further investigation so you stay compliant. 

Avoid costly and time-consuming production of redundant and unnecessary documents while reducing the risk of producing privileged or protected content. 

 

Faster Data Ingestion, Faster ROI With CloudNine Explore

CloudNine Explore saves you money, which in turn positions your project to yield high ROI. 

  • Explore works extremely fast, which means less time spent processing and reviewing data. 
  • Explore stores your data securely in a single, on-prem location, which provides your organization with consistent and transparent pricing. 
  • Integration costs are minimal because of its simplicity. Installation, scale, and automation are simple and straightforward. You don’t even need an IT department to deploy it. 

Now that you’ve learned how CloudNine Explore allows you to safely store and process your data; request a free demo to learn how you can save time and money.

 

Authenticating Communication Screenshots

Text messages and social media evidence can offer a plethora of relevant data. However, screenshots are not a reliable form of authenticating digital communication. Whether its Slack, Facebook Messenger, or email, screenshots of digital evidence can be easily fabricated.

Screenshot Failures in Court

  • Rossbach v. Montefiore Medical Center: To substantiate claims of workplace harassment and wrongful termination, the plaintiff submitted text screenshots from her former employer. The suit was dismissed after the court noticed emojis that an iPhone 5 is unable to depict.[1]
  • Moroccanoil v. Marc Anthony Cosmetics: In this trademark case, the court dismissed Facebook screenshots because of insufficient circumstantial evidence.[2]
  • R v. Martin: Facebook screenshots submitted to the police through an anonymous source were rejected by the court. The judge held that the anonymous source and the police couldn’t validate the authenticity of the evidence.[3]

How to Authenticate a Text Message Screenshot

Rule 901(b) of the Federal Rules of Evidence offers examples of authenticating all forms of digital evidence. The following are examples that are most applicable to screenshots of text messages:

  • Testimony of a Witness with Knowledge
  • Comparison by an Expert Witness or the Trier of Fact
  • Distinctive Characteristics and the Like
  • Evidence About Public Records
  • Methods Provided by a Statute or Rule (e.g. phone company records)[4]

How to Authenticate a Social Media Screenshot

  • Testimony from the alleged poster claiming ownership of the profile in question.
  • Expert testimony validating that the content originated from the alleged creator’s device.
  • Witness testimony confirming that the alleged author was the true creator of the content based on distinct characteristics.[5]
  • Testimony from the social media network stating that the alleged creator of the post(s) had exclusive access to the device in question and social media account.[6]

Conclusion

Though screenshots may seem like an easy ESI production method, it’s best to collect evidence from native files. However, Rene v. State of Texas demonstrates that screenshots can be helpful when utilized correctly. In this case, the defense argued against the admittance of evidence from the defendant’s MySpace account. They maintained there was no evidence of when the pictures were taken, who captured them, or if they were real. Yet, the court approved their admittance because more compelling data supported the evidence in the screenshot.[7] Rene v. State of Texas exemplifies that communication screenshots are best utilized as supporting evidence rather than the foundation of an argument.

 

[1] Philip Favro, “Fabricated Text Message Case Highlights the Importance of Emojis in E-Discovery,” Legaltech News, August 16, 2021, https://www.law.com/legaltechnews/2021/08/16/fabricated-text-message-case-highlights-the-importance-of-emojis-in-e-discovery/?kw=Fabricated%20Text%20Message%20Case%20Highlights%20the%20Importance%20of%20Emojis%20in%20E-Discovery

[2] “Court Cases Involving Social Media,” Bosco Legal Services, Inc. Accessed August 22, 2021, https://www.boscolegal.org/court-resources/social-media-case-law/

[3] Ramna Safeer, “Shedding Light on Screenshots as Electronic Evidence,” Thecourt.ca, January 18, 2021. http://www.thecourt.ca/r-v-martin-shedding-light-on-screenshots-as-electronic-evidence/

[4] “Rule 901 – Authenticating or Identifying Evidence,” Rules of Evidence, Accessed August 23, 2021, https://www.rulesofevidence.org/article-ix/rule-901/

[5] Denise A. Blake, “Social Media Evidence at Trial,” The People’s Law Library of Maryland, May 19, 2021, https://www.peoples-law.org/social-media-evidence-trial

[6] Michaela Battista Sozio, “Authenticating Digital Evidence at Trial,” American Bar Association, April 27, 2017, https://www.americanbar.org/groups/business_law/publications/blt/2017/04/03_sozio/

[7] “Court Cases Involving Social Media,” Bosco Legal Services, Inc. Accessed August 22, 2021, https://www.boscolegal.org/court-resources/social-media-case-law/

Export Review Documents Using Self-Serve Productions

#DidYouKnow: You can export your own documents for production from CloudNine Review, with or without support from the CloudNine Client Services team?

 

Document production sizes can range from one document to tens or even hundreds of thousands of documents.

Some platforms require legal teams to work with their project managers to coordinate productions, regardless of size or complexity. This can lead to delays and risk as instructions are handed off to teams, unfamiliar with the case.

 

Self-service productions provide complete project control with 24×7 access to export case documents independently.

  • Control your data to ensure important, relevant documents are not missed.
  • Control your project cost by paying only for what you need and, nothing you don’t.

CloudNine Review empowers clients to export documents themselves, including native files and emails, searchable text, and static images of documents containing confidential language, unique identifiers, and redactions.

Ready to Get Started with Self-Service Productions?  

To start a self-service production in CloudNine Review, select the Tools menu in the upper right corner then, click the Self-Service Production option.

Next, select whether you would like to produce images, native files, text, and metadata, or any combination of these.

If your documents do not yet have static images, they can be created during this process.  Annotations and redactions can be permanently applied to images, and there are several Excel imaging options, including using slip sheets instead of generating images.

The fielded metadata associated with the production records can be exported in a variety of formats including the common .DAT file, a .CSV file, or XML.

Users running a production can select and deselect fields to include in the production metadata file.

View Productions As They Progress in the User-facing Dashboard:   

This screen also allows users to clean up old productions and exports they no longer need to access.

Stay informed of software updates and browse training documentation in the CloudNine Review Knowledgebase (login required).

To learn more about CloudNine Review and Self-Service Productions, click the button below to schedule a demo!

Here’s a Webcast on How to Win the Battle on Discovery Form of Production: eDiscovery Webcasts

Yesterday, I said that (despite the current COVID-19 crisis) CloudNine is continuing to provide the full range of services and high-quality support you have come to expect, including this blog.  And, webcasts too!  We’re back and better than ever with our next webcast – in just three weeks!

Let’s face it, one of the most common disputes in discovery today has to do with the form or forms of production for the electronically stored information (ESI) in the case. There are quite a few misconceptions regarding the different production forms as well as the pros and cons of each. So, what do you need to know to request the most appropriate form of production to maximize the information available to you, at a cost you can afford and a format that supports presentation activities such as depositions and trial exhibits?

Wednesday, April 8th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Winning the Battle on Discovery Form of Production. In this one-hour webcast that’s CLE-approved in selected states, we will cover current rules regarding form of production, options available to you, the pros and cons of each and relevant case law regarding recent form of production disputes. Topics include:

  • History Lesson: How We Got Here
  • Federal Rules Addressing Forms of Production
  • Options for Forms of Production
  • Objections to Native File Production and Counter-Arguments
  • Considerations for ESI Protocols
  • Key Recent Case Law Opinions Regarding Form of Production
  • Recommendations and Resources for More Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how to win the battle on form of production disputes, this webcast is for you!

So, what do you think?  Do you feel like you understand how to select the form of production that is the most informative and most cost-effective for your cases?  If not, please join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was last Tuesday, the second part was last Wednesday and the third part was last Friday, here’s the fourth and final part.

Conclusions

So, is all this controversy over ESI format legitimate? Or is it, in the words of Bob Eisenberg,

“ … a cocktail of the dubious, bogus and unfounded.  A stew of junk or half-baked technical science and disingenuous advocacy, seeking to rationalize the unreasonable, while tilting that proverbial playing field as far as possible in support of the defense …”.

You make the call.

Regardless, we’re certainly seeing more cases where form of production is figuring prominently in court rulings.  Here are some cases covered by eDiscovery Daily in just the past couple of years regarding form of production disputes, some which granted requests for native files and metadata, others which did not:

Finally, there is one terrific resource regarding form of production that everyone should read and it’s (once again) from renowned eDiscovery expert Craig Ball.  Craig’s Lawyer’s Guide to Forms of Production discusses all of the format options available to attorneys, the pros and cons of each, how to address considerations such as Bates numbers and redactions, and it even includes a sample Request for Production to help guide attorneys on requesting ESI.  Check it out!

So, what do you think?  Do you prefer image-based productions or native file productions?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was Tuesday and the second part was Wednesday, here’s the third part.

Objections to Native File Production and Counter-Arguments

So, what are the objections most commonly raised by producing parties? I’ll discuss the standard objections below and after that I’ll mention some counter arguments to those objections, including several that have been raised recently by renowned eDiscovery expert Craig Ball.

The objections to native file production we see most often are the following:

  1. The Defense has already created a database containing all documents to be produced (often in related litigation) and retrieval of native files would place an added cost on the producing party.
  2. Redaction is unduly costly and even impossible with some native files
  3. It is unduly burdensome and costly to require an entirely new review of relevant documents necessary to produce native files
  4. Native files cannot be Bates numbered, making them less useful for presentation activities like depositions and trial.
  5. Federal Rule of Civil Procedure 34 does not specifically call for production in native format
  6. Image-based productions have been accepted in many courts
  7. Static images are equally useful for analysis purposes as native files

The response to most of these objections is first that they are not “specific” as required by Rule 34 and second that they are generally untrue. TIFF files are not as useful as native files in that they are not searchable, contain no metadata from the original files and are not at all conducive to the use of TAR or analytics software for searching.

And more specifically, the notes to the FRCP point out that:

[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

FRCP Rule 34, Committee Notes on Rules – 2006 Amendment

The latter objection was covered thoroughly by Craig Ball in a blog post of his entitled Degradation: How TIFF+ Disrupts Search. In brief, Craig notes that TIFF load file inaccuracies can reduce accurate searchability (and I routinely see problems in 2/3 of the load files I am asked to investigate, even from large experienced vendors) and further that the suppression of comments or their merger into other portions of text can also severely inhibit accurate searching.

Even more interesting is an analysis Craig performed on the difference in file sizes between TIFF and some standard native files which result in increased costs to requesting parties who will be hosting the documents in a web-based service. In a blog post entitled Don’t Let Plaintiffs’ Lawyers Read This!!, Craig noted that since TIFF images of native files are much larger than the native files and most most eDiscovery service providers are “In the Cloud” and charge by data volume, then a production format that increases data size 15, 20 or 25 times is a violation of the proportionality principle.

Seem far-fetched? Well as Craig notes in his post “let’s do the math” and the math is clear. So clear that one judge in one recent case agreed with him and ordered native file production despite the defendants raising a number of the objections above and disputing Craig’s testimony about file size.

With regard to the objection above raised by producing parties that native files cannot be Bates numbered, making them less useful for depositions, trial and other events where evidence is presented, there is an easy solution to that issue.  Most parties that produce native files generate a file level number for each document that is used to track productions at the document level (essentially a document-level Bates number).  When it comes time to use some of those documents in evidence, they can be converted to image form and the page numbers can be added as a prefix (e.g., PROD00000123-0001, PROD00000123-0002, etc., where “PROD00000123” references the document-level Bates number that was used to track the documents produced.  Keep in mind that only a fraction of the documents produced (often a very small fraction) are used in evidence presentation.  Native file productions don’t eliminate the ability to refer to specific pages within documents when presenting evidence.

We’ll publish Part 4 – Conclusions – next Monday.

So, what do you think?  Do you prefer image-based productions or native file productions? As always, please share any comments you might have or if you’d like to know more about a particular topic.

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