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By Johnette Hassell
Johnette Hassell, Ph.D., a national consultant and expert witness in computer forensics and e-discovery, has been on Round Table Group's list of experts since 2005. She is the founder and CEO of Electronic Evidence Retrieval, L.L.C.,[1] a full-service computer forensic and e-discovery firm that provides litigation support from initial case investigation, through discovery, and into trial. Dr. Hassell is a highly acclaimed national speaker on e-discovery and computer forensics.
In this article, Dr. Hassell explains how to thread the e-discovery maze created by Rules 26-37, Federal Rules of Civil Procedure.
Have any of these circumstances occurred in your practice? Or in the practice of anyone you know? The 2006 e‑discovery amendments to the Federal Rules of Civil Procedure place powerful tactics in the hands of litigators, tactics that you can use to address each of these issues, and many others.
Here's how e-discovery and computer forensic consultants and experts can help you when you encounter any of these situations.
You Believe They Are Not Giving You All That You Are Entitled To
You have requested the production of e-mail communications between two relevant parties. After much stalling, the other side produced a few printed e-mails, saying that's all they have. You suspect that many more messages exist. In a 30.b.6 deposition, you ask the deponent how she communicates with her secretary, particularly when she is traveling. She replies, "We use e-mail." You follow up with questions about e-mail servers and document retention and destruction policies, perhaps reminding the deponent about the serious sanctions (such as $1.6 billion) imposed for deleting and not producing relevant e-mails.
What are your options when the other side continues to resist? You can go to the court and get an order that the e-mails be produced, which often results in only a few more messages. Or, as I recommend, you can obtain an order allowing an e-discovery expert to examine the opposing side's computers and servers, and search for existing and deleted e-mails responsive to your request. If you take the latter tactic, you'll meet resistance in the form of claims of privilege, confidential information, trade secrets, copyrights, and so on. Fortunately, there is a viable solution to this problem. The e-discovery expert can extract e-mails and other materials that satisfy your selection criteria and provide a copy to the opposing party for review. The opposition would then produce responsive, non-privileged results and provide you with a privilege/redaction log. The e-discovery expert, of course, would retain the original materials and log--just to keep everything honest.
You Know the Opposition Has a Massive Information Infrastructure and You Want to Prevent Them from Burying You in Discovery Production
The opposition is large, perhaps multinational. You know there is going to be a lot of discovery produced, perhaps thousands of boxes of paper documents. In one of my cases (before enactment of the e-discovery amendments), the defendant produced 8,000 e-mails; however, he generated them "electronically" by printing and then scanning them into a fax-like format. The scanned files could not be searched for recipients, subjects, key words, or other criteria. To review an e-mail, someone had to open each file, read it, and enter it into a document-tracking system.
This is the type of situation in which having an experienced e-discovery expert on your team really pays off. The amendments call for very early discussions of e-discovery, specifically directing attorneys to address the form of electronically stored information (ESI) production at the Rule 26 "Meet and Confer." Furthermore, counsel are directed to produce a list of persons with custody and control of ESI and a list, "by location and category," of all the ESI they expect to rely on in their case--and to produce this list at least 21 days before the Rule 26 conference. You need to be ready by knowing all that the amendments allow in e-discovery.
Specifying the Form of Production
As a default, the e-discovery amendments provide for the production of electronic documents in the form in which they are normally kept and used. The amendments also give you the right to request the form in which the results are to be produced; thus, your first step in protecting against the paper blizzard is to inform opposing counsel that you will request electronic production. Each discovery request should specify the form in which it should be produced. I usually suggest native form--the form in which the documents or information was originally created and stored. Courts have been inconsistent, but at least one (Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc.) held that if you did not initially request the production in electronic form, you cannot go back and obtain it in electronic form after it was produced in a reasonably useful, albeit paper, form.
If you are the producer and the requester did not specify the form, the amendments require you to describe the form you will use. In contrast to Autotech, another court (White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc.) required the producer to produce e-mails a second time, in electronic form, after producing only printed e-mails in the first production.
The amendments specifically state that if the producing party can search the documents, the receiving side must also have that ability. They also allow native format to be converted into some "reasonably usable" form. In my case with the 8,000 e-mails, after I complained about the form of the initial delivery, the next production came in a specialized .pdf format that was not searchable. You can thwart this type of obstructionist tactic by stating in your request that any searchability in the original format must be maintained.
I believe that such searchability is important in discovery management. If documents can be searched, they can be electronically analyzed and organized, thereby reducing your time and your client's costs. I will discuss some specific electronic analysis later in this article.
Formulating Your Request for Production
Your second chance at preventing an over-inclusive production lies in carefully crafting selection criteria in your discovery request. Attorneys used to request "all documents relating to the contract between...." People went through their files and pulled what seemed to be responsive. Now, because of the sheer volume of ESI, we want to use electronic tools to identify responsive electronic documents.
The challenge is in answering the question, "What criteria do the tools use?" Initially, we used simple search terms such as "All files containing any of the following words: MySecretSauce, Mr. Bad Guy, Big Competitor, Smith Contract." But that approach often yields too many or too few hits. If, for example, "MySecretSauce" appears in the company's e-mail banner, every corporate e-mail would yield a hit. Furthermore, a search for "Smith Contract" may yield too many hits if Mr. Smith is a party to many contracts, most of them unrelated to your litigation. Also, an e-mail might refer to the Smith "matter," "agreement," or "issue," and never use the word "contract."
While there is no magic bullet in this situation, it is a good time to call in an experienced e-discovery consultant.
In recognition of these issues, judges are calling for collaboration between the parties in developing selection criteria and, importantly, testing those criteria. In fact, the e-discovery amendments specifically provide for such testing.
Some judges, for example Magistrate Judge John Facciola in U.S. v. O'Keefe and Equity Analytics v. Lundin and Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., are getting savvy about selection criteria, with Judge Grimm famously saying "all keyword searches are not created equal."
You Know That They Have Not Produced Everything
You have a copy of a relevant, responsive document or e-mail that the opposing side has not produced. You included search criteria in your production request that should have gotten a hit, but the item has not been produced.
This is another situation in which you need to call for a complete forensic examination of the opposition's computers and servers. As indicated earlier, such a request will probably be met with great resistance. But a forensic examination can recover a wealth of evidence not otherwise available, such as deleted files, file fragments that demonstrate the prior presence of files, attempts to thwart discovery by the use of secure overwriting software, and more.
You Have Just Received an Electronic Production of 50,000 E-Mails and 500,000 Documents
Your approach to reviewing this production may well depend on the size of the case. Consider two situations:
First, suppose you have a huge case involving hundreds of millions of dollars. There are well-known electronic e-discovery tools that process e-mails, attachments, and documents and allow you to view the data in many ways. They can identify e-mail conversations, shared documents, common-term usage and much, much more. Such tools can cost several hundred dollars per gigabyte for processing the discovery and may be cost-prohibitive for smaller cases. These tools are also valuable in the case-assessment phase to help attorneys understand the nature of their client's data.
Second, consider a case whose value does not justify an expenditure of the millions of dollars needed for the services described above. In such situations there are ways to significantly reduce the cost of analysis. Note that employees within a company frequently have multiple copies of the same documents and e-mails (each has his/her own copy of a document; each may have multiple versions of the same document, etc.). Thus, a first step in reducing the size of the production is to identify duplicate copies of the same information, a process known as deduping. Obviously, you only have to review a duplicate document once; however, the mere presence of a duplicate may be relevant to your case. For example, it may be of great interest that an unauthorized employee has a copy of a proprietary design document.
There is also an emerging technology that identifies near-duplicate documents. Near-duplicate documents are similar within a certain percentage threshold, such as two similar MS Word documents (the original and an edited version), or an e-mail and the response to that e-mail. Organizing electronic files into sets of near-duplicates reduces the time needed to review the documents and helps assure consistency in their analysis. It also provides insight into the evolution of documents and their various changes along a timeline. Typical charges for near-duplicate analysis are cents per document analyzed.
Because of forwarding, "cc:-ing," and replying, an e-mail collection has a more complex structure than a collection of other documents. E-mail thread analysis is used to organize e-mails into meaningful groups, such as a chain of e-mails in which each one contains its predecessor. Again, the reviewer saves time and gains consistency by reviewing a thread as an entity, rather than each e-mail individually. Attachments remain associated with their e-mail message, facilitating a "who-knew-what-when" analysis. An additional benefit is that missing e-mails can be identified, often leading, as it did in one of my cases, to the "smoking gun." As with near-duplicate analysis, typical charges are cents per e-mail analyzed.
Summary
The e-discovery amendments address many more issues, some involving legal theory and others dealing with such practical concepts as metadata and information architectures. See my blog, ComputerForensicsEDiscovery.com, for ongoing discussions and practical insight on the e-discovery and computer forensic landscape.
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This page contains a single entry by Chris Crone posted on October 2, 2008 4:35 PM.
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