Electronic Discovery Made Easy : Electronic Discovery & Document Management Commentary : David Rostov : Lighthouse Document Technologies : Litigation Support News & Updates

By Debora Motyka Jones

Following up on my last few blogs, you can also create various charts in Pivot to show you what your reviewers are doing, including how they are tagging documents, and quickly identify any possible quality issues. As you can see below, you can use Pivot’s bar graph capabilities to identify that one reviewer is disproportionately tagging documents as “Not Responsive.” You can link to the documents he or she has tagged as non-responsive to take a closer look and find out whether it is a quality issue, or merely that they have received several batches of irrelevant documents.

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We were recently asked for our thoughts on how best to strategically sift through large data sets when you are on the receiving end of the data. Here is a summary of what we recommended.

Meet and Confer. The goal is to get the other side to produce as much information as possible tailored to work best with your case strategy and review tools.

Optimal Production on the Receiving Side. We recommend requesting processed natives – data that the other side converted into a litigation data base. The data would include extracted text, OCR, metadata and all images. The files would be numbered with document IDs so that both sides could keep track of the documents. Benefits include: lower cost, ease of search, ability to cluster documents and tracking discussions. 

TIFF Production with Metadata. If the other side will only provide TIFF images, then we would recommend that you require that they provide as much metadata as possible. At a minimum, you will want to get the extracted text, OCR and all major metadata fields. Here are some ways that you can improve the efficiency of your review. 

·         Use of file type analysis to eliminate "junk"

·         Recreate email discussion threads using the Message ID field

·         Grouping documents that are similar (near dupes)

·         Comparing track changes across similar documents

TIFF Production with Limited Metadata. If the data provides are TIFFs with limited metadata (e.g. existing discovery, hard copy documents, etc.), then the focus on increasing review work flow. Here are a few ways to improve reviewer:

·        Mass remove “junk” files to a lower level review team that can confirm non-responsive documents (e.g. a football pool email).

·        Use a work flow that does not require reviewers to tag non-responsive documents at first glance. After finishing, mass tag anything left without a tag as Not Responsive.

·        Use an MD5-hash value to find and auto-code duplicate documents.

To summarize, the more metadata that the producing party provides, the better. Therefore, up-front ask for as much meta-data as possible with specificity around the technical format required.

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There are some very exciting trends and developments going on in the Early Case Assessment (“ECA”) phase of litigation. ECA is a critical part of the litigation process since it is a time to perform a preliminary analysis of the merits of a case, claims, likely defenses and estimate of the cost of the case. Usually the ECA is conducted in the first 90 days from the time a case is filed. There is general agreement that ECA improves litigation outcomes. For example, a survey by LexisNexis  showed that ECA results in favorable outcomes in 76% of cases and reduces litigation expenses in 50% of cases.

In the digital era, the BIG CHALLENGE is getting access to the electronic data early in the ECA process and having the tools to allow the legal team to evaluate the case based on a preliminary review of the evidence. This is both a technology challenge as well as a cost challenge. The good news is that there are now a number of early case assessment tools on the market that can solve this problem. We are big fans of Clearwell for this and our clients are seeing the value.

The key benefits from this are:

1. Speeding up access to client data. The documents can be fully indexed and available to review within hours rather than weeks.
2. An easy to use web interface. This means it is available anywhere and anytime. There is no need to rely on internal IT resources and no need to purchase additional software or hardware.
3. Collaboration between in-house counsel and outside counsel. It is very easy to have the legal team work together to examine key documents.

Effective use of an early case assessment tool makes it possible to prepare an Early Case Assessment in the digital era. A good understanding of the documents allows the legal team to prepare a more complete litigation strategy. It also helps lower the overall cost of the case by reducing the amount of data that needs to be processed for review and correspondingly reducing the amount of legal hours required for review. The other added benefit is that the legal team will be able to create a more accurate budget for the case based on their insight into the data size and its nuances.

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To-date, most litigation electronic discovery requests are limited to custodian email and loose documents. The requests ignore custodian mobile phone data, in particular stored text messages.  The next big eDiscovery collection trend for litigation will likely be the collection of text messages from mobile phones.

Text messaging is still viewed as something that only teenagers really use. However, the usage data on text messaging is quite revealing. Over 70% of Americans ages 25 to 49 use text messaging. The average number of texts sent per day per user in the US is over 10. In 2008, the number of text messages sent surpassed mobile phone calls. And text messaging is growing at 100 to 200% per year.

To put texting in its proper context, it is estimated that Americans send about 30 emails per day (the data on this is not very precise). This means that texting accounts for ¼ of the daily electronic correspondence sent in the US.

The first step in any forensics investigation is identifying sources of evidence.  Mobile phones store evidence in a variety of locations and media formats. Similar to desktop computers, most cell phones have an internal memory and a removable storage media (SD Cards).  Depending on the carrier, an internal SIM (Security Identity Module) card stores pertinent information, such as phone numbers, contacts, and unique subscriber registration data.

As with computer collections, mobile device collections should be done in a forensically sound manner. This means that the data collected must be collected without changing the original device content. A forensic hash should be performed on the collected data to insure that no subsequent changes are made to the data. Keep in mind that the data on mobile devices is constantly changing (e.g. clock time, network data, etc.) so it is important to make an exact replica as quickly as possible.

The main challenge with mobile collections is that most cellular phones use a proprietary operating system. This is compounded by the fact that new mobile devices are constantly being introduced into the market making it a challenge to stay current on the collections tools. Often the hardest part in the collection is just having the right phone adapter on hand to be able to do the data transfer from the phone to the acquiring computer.

After making a copy of the phone data, the next step is to analyze the data. The forensic tools available for analysis and processing are still in their early stage of development. However, there are a number of forensic tools available such as Paraben’s Device Seizure Toolkit and Guidance Software’s Neutrino.  Paraben’s Device Seizure is probably the most common tool used both by law enforcement as well as for commercial litigation.  These tools are very similar to traditional forensics software utilities and offer many of the same capabilities and functionally, such as text viewing and keyword. During the analysis phase text messages, e-mails and contacts can be identified, undeleted (if necessary), searched, and exported for review or further processing. If you are interested in more information on mobile collections, The National Institute of Standards and Technology (NIST) has a good overview.

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