In the spring of 1968, my sixth grade class from suburban Eastchester went to the Loews Capitol Theatre at 51st and Broadway in New York City to see 2001: A Space Odyssey. It was an unforgettable event. Though much of the movie went over our ten-year-old heads, we got the message about tools and evolution when our hairy forebear flung his bone “hammer” aloft and it became a sleek spaceship. We evolve to use tools, and the tools we use drive our evolution.
We can’t deal with electronic evidence without tools. The more adept we are with those tools, the more adept we become with electronic evidence. Tools that let us touch data—hold it up to the light and turn it this way and that—change the way we look at data. Tools change us.
I’m always preaching that lawyers must get their hands dirty with data and get back in touch with the evidence. It’s a metaphor, but it’s also a manifesto. A master builder needn’t swing every hammer; but, a master builder knows how a hammer feels in the hand.
So, I prodded and pushed e-discovery vendors to bring out tools powerful enough to do real work while inexpensive enough for anyone to own. In 2009, I issued the EDna Challenge. The goal was to equip a small firm lawyer to competently process and review less than 10 gigabytes of run-of-the-mill ESI.
The processing and review tool or service meeting the Edna Challenge must:
1. Preserve relevant metadata;
2. Incorporate de-duplication;
3. Support robust search;
4. Run well on late-model PCs; and, most importantly,
5. Cost less than $1,000.00 over the two-to-three year life of a lawsuit.
Several vendors claimed victory, yet “met” the Challenge by ignoring a crucial need, e.g., requiring the data to miraculously morph into TIFFs and load files, or by eliding over fees for ingestion and storage. A pair of developers got very close to true victory. Splendid products like Vound Software’s Intella and GGO’s Digital WarRoom could do the work, but alas, couldn’t stay under budget for the life of the case. Still, they deserve kudos for delivering powerful, economical tools. The real “winners” of the EDna Challenge have been all of us who consume e-discovery tools and services: we have benefitted from falling prices and increased competition.
I was sure that if someone built an amazing, affordable e-discovery desktop tool, the world would beat a path to their door. In fact, someone did build a tool that could do virtually everything required to professionally complete a small-scale e-discovery effort. It was my Holy Grail. The tool was easy to obtain, install and use on a desktop or laptop and cost only $100.00 for an annual license. And to make even that piddling price painless, the seller committed to donate all proceeds to child literacy!
Of, course, I’m talking about Prooffinder by Nuix, the Sydney-based concern that produces the ESI processing technology used by big corporations, service providers and government agencies all over the world. Finally, here was a tool that any lawyer, paralegal or IT person could afford to put on their Windows machine. Prooffinder has Nuix’s superior DNA, but is limited to processing up to 15 gigabytes per matter. That’s a minor handicap considering you can open as many “matters” as you wish, and 15GB tends to be ample for, say, the collections of several key custodians.
Here is just a sampling of what Prooffinder can do:
1. Allows fast, eyes-on access to all common forms of electronic data without altering content
Prooffinder opens, parses and supports instant viewing of the contents of hundreds of common and esoteric file formats, including all common data containers (like Outlook PST and OST mail files and compressed archives). You weren’t really going to open all those spreadsheets in Excel or risk using Outlook to view e-mail, were you?
2. Sorts and filters on virtually any aspect of the information
Want to see just attached Excel spreadsheets and Word documents containing specified terms from April 3rd through 9th? Click. Click. Click. No problem.
3. Deduplicates the data by custodian or across custodians, including e-mail
Seeing just one copy of each item dramatically increases the efficiency of review. Prooffinder even supports configurable near-deduplication.
4. Flexible, powerful and easy-to-use search
If there is a search you want to run, Prooffinder can run it: Boolean, proximity, stemming, you name it. Plus, you can confine your search to just those parts of the data (like file paths or metadata) that interest you.
5. Configurable item tagging
Prooffinder allows you to create the tags you want to use in your review, including assigning tags to keyboard shortcuts.
6. Instantly tweak and test searches
You no longer need to make crucial keyword selections based on mysterious hit counts. Prooffinder allows you to test searches on representative data and quickly determine why searches expected to perform didn’t and how over-inclusive searches can be tweaked to perform as expected.
7. Word lists
By compiling all the words into sortable lists, Prooffinder permits identification of common misspellings and acronyms.
8. Presents the complete metadata picture
Prooffinder extracts all the metadata you could want and presents it with just the level of detail you choose. No need to fear that an opponent will see something in the production you couldn’t see.
9. Detailed exceptions reporting
Prooffinder flags, quantifies and segregates data that can’t be processed for text extraction or requires special handling, e.g., decryption.
10. Impressive Export Capabilities
Though it won’t generate conventional load files, Prooffinder builds highly-detailed and customizable production reports, assembles PSTs for production, converts selected items to PDF and generates HTML reports with full text extraction for each item chosen for export.
Though I think of Prooffinder as the ideal entry-level tool for solo and small firm practitioners, I recently came to see how hamstrung big firm lawyers are without desktop e-discovery tools.
I was assisting the requesting party in an e-discovery effort where a big firm lawyer rejected proposed search terms as overbroad and couldn’t answer my questions about the capabilities and limitations of the search tools his client’s e-discovery vendor used. The collection slated for search consisted of a huge volume of e-mail messages and attachments exported to PST container formats for each custodian. The other side couldn’t produce any coherent metrics to support its objections. We accepted that hit counts were high, but were confident that noise hits could be quickly and reliably excluded if we could simply see examples of the noisy hits in context so as to identify Boolean constructs that would eliminate them. We also suspected that the hit counts were grossly inflated by inadequate deduplication across custodians holding the same responsive messages.
Additionally, we were concerned that many of the relevant documents we sought were attached to the messaging in non-textual formats (like faxes and scans) and thus weren’t responsive to keyword search. The other side had no idea how much of their data comprised such non-searchable documents.
It became clear that the other side couldn’t address the problem because their tools didn’t allow them to get the answers we needed. The proposed searches were slated to be run against a lot of data, so it was crucial that both sides settle on efficient, effective methods of culling and search.
At an impasse, I proposed that opposing counsel buy a copy of Prooffinder and run it against the PSTs of a couple of agreed-upon key custodians—merely a sensible sample. As the $100 Prooffinder cost the same as just minutes of his billable time, he couldn’t object on a cost basis. To his credit, he agreed.
When we sat down together with the Prooffinder-processed sample, it took no time at all to tweak the contentious searches, assess the level of duplication and determine what complement of the data needed to undergo optical character recognition. At first, he worked with the data as I talked him through the queries, so no privileged content was compromised. Very soon, my opponent picked up the intuitive Prooffinder interface and needed no guidance.
We learned that our worst fears about a lack of duplication were warranted but that our concerns about faxes and scans were largely unfounded. Through testing, and by virtue of seeing results instantly, the proposed search terms were crafted to work with little noise. Thanks to Prooffinder (and thanks to a lawyer who wasn’t afraid to get his hands a little dirty with the data), the other side saved hundreds of thousands of dollars that would have been wasted poring over multiple copies of irrelevant documents. We got more of the documents we sought and far less junk.
This experience taught me that big firms, too, needed copies on the machines of all their litigators and legal assistants. Then, anyone could quickly look at exemplar digital evidence, run test searches, tweak queries, assess duplication, weigh accessibility and undertake meaningful early case assessment. Every ape could pick up a bone and start pounding on data. In so doing, we would evolve to better understand ESI and make smarter, more cost-effective decisions in e-discovery.
Tools Change Us
Having a portal to ESI right on our desktops would change us in much the same way that web browsers gave us the Internet and changed us. Because it’s so inexpensive, everyone can afford a copy and everyone can gain a comparable insight into electronic evidence. Opponents can then work together, refining searches by testing instead of guessing. Everyone can see the same metadata and realize that metadata isn’t something to fear.
Most of all, it would help restore an aspect of lawyering that’s fading away. Once, a prospective client carried in a sheaf of papers—records, correspondence, receipts, bills, pleadings. A lawyer read them and asked questions. That lawyer had a “peek” at the evidence and assessed the matter quickly because he or she had to accept the engagement or turn it away.
Today, the evidence is digital. A client may supply printouts of what they deem important, but it’s no longer just a signed contract or a couple of business letters. Much remains unseen, in the e-mail or the network share contents. The evidence lies among hundreds or thousands of threaded messages or exists as revealing comments embedded within drafts of e-documents. Now, it takes weeks or months and costs tens of thousands of dollars before lawyers start to sift through the evidence and assess exposure in earnest—assuming that the untested keyword searches employed serve to return relevant data.
Lawyers need tools that allow them to once more “peek” at the relevant evidence. Prooffinder is ideal for that. I thought it would sell out in days; but I guess not everyone is ready to touch the monolith. Amazingly, there are still a few licenses for sale at www.prooffinder.com. That’s great news for you because, in its latest release, Prooffinder is better than ever, and every dollar from license sales still goes to build schools and support the charity, Room to Read.
Just imagine how the savings and efficiencies I saw might be replicated in other cases if more lawyers had the ability to peek into the evidence, secure solid metrics and quickly test and refine searches. If anyone can gain this extraordinary capability for $100 dedicated to child literacy, why hasn’t everybody already done so? Why haven’t you?