February 2016 Bar Bulletin
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Trust Yourself To Conduct Early Assessment of Electronic Evidence

By Larry G. Johnson

 

When it comes to early assessment of your client’s case to determine whether settlement or summary judgment may be the best course of action, that task can rarely be accomplished without examining the available electronic evidence. Because just as bank robber Willie Sutton famously said when asked why he robbed banks — “because that’s where the money is” — so in today’s litigation world, electronically stored information (“ESI”) is where most of the evidence is.

But like many lawyers you may think you don’t have the technical competence or expertise to investigate computer-
generated evidence on your own. So, you may delegate this vital task to a subordinate such as a paralegal or in-house IT person and hope for the best.

But when you do that you run several major risks, including these:

Neither an in-house IT person or “computer guru” paralegal will likely have the unique skills required for proper examination of digital evidence.

Every law firm seems to have a staff person who is considered the “go-to guy” for computer issues. I like to call that person “Jenny.” She’s the one you always ask to get you unstuck from some mess you made in an Excel spreadsheet or who knows how to find an old email in your Outlook mailbox. You think she can fix anything.

Or there is John, who manages your firm’s computer network system. He also knows a lot about computers, but his job is chiefly to keep the electronic plumbing of your firm’s network in working order. He or she most likely knows none of the many software tools e-discovery experts utilize to find relevant evidence.

Without the expertise related specifically to e-discovery, here are examples of some of the common mistakes a Jenny or John can make:

• Using the “find” function in Outlook to search emails limits you to single-word search terms and consequently produces far too many “false positives.” More refined results come from the use of combinations of search words that occur in Boolean searches (e.g., “oranges AND apples”) or proximity searches (“‘John’ within 3 words of ‘Smith’”). Seemingly counterintuitive, the more complex the mix of search terms used in a search, the more focused and reduced is the resulting set of responsive documents containing “hits.”

• The “find” feature used to search emails in Outlook does not search the email attachments. The most important documents in an enterprise are often shared with others via email attachments, and Outlook “find” searches will completely miss those.

• Loading and searching a custodian’s emails in Outlook changes the metadata. Do you want to be called as a witness to testify about the spoliation of evidence?

• A further problem when limiting your search for responsive emails within custodians’ Outlook mailboxes alone: Important emails may be overlooked that were saved or archived and reside outside the user’s mailbox (e.g., in a separate folder, public folders, offline storage devices, and network or cloud archives) — places where the in-house guru would not likely go to search.

• Insisting on producing TIFFs or PDFs instead of native files (the federal rules and their commentary strongly imply that native file format is the preferred way to produce ESI).

• Defaulting to a “one-time, get-it-all-now” set of search terms and culling of all data, rather than intelligently starting with the most likely custodians with evidence first and using just a few key search terms in combination, then letting the results inform further searches in an iterative, probabilistic manner.

• Failing to “de-dupe” files and remove duplicates across all custodians’ files as a whole (while also preserving the option to keep an audit trail of all duplicates if there is a critical document and an issue arises about who had it and when).

• Going through the document review death march of looking at one doc at a time, rather than viewing a chronological overview of lists of “hits” within the context of lines of text before and after the hits, so that one can scroll quickly through scores of worthless documents rather than doing endless zombie point-and-clicks to wade through documents one at a time.

• Ignoring date metadata that would exclude docs that fall outside an agreed relevant time frame. There is a way to automate that process to significantly reduce the population of documents to review.

• Failure to take advantage of cost savings and efficiencies in using Rule 26 to limit e-discovery scope and amount. Jenny and John will probably have no clue about Rule 26 and its many potential uses.

• Missing key data that may reside uniquely on overlooked devices such as smartphones, voicemail, thumb drives, online social media, backup tapes, databases, SharePoint, etc.


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