This is the eleventh in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

A Golden Rule for E-Discovery

[Originally published in Law Technology News, March 2006]

Albert Einstein said, “In the middle of every difficulty lies opportunity.”  Electronic data discovery is certainly one of the greatest difficulties facing litigants today.  So wouldn’t you know some genius would seize upon it as an opportunity for abuse?  Perhaps Einstein meant to say, “In the middle of every difficulty is an opportunity for lies.”

I’m not talking about the pyrotechnic failures to produce email or account for back up tapes that brought low the mighty in such cases as Zubulake v. UBS Warburg and Coleman (Parent) Holdings v. Morgan Stanley.  Stonewalling in discovery predated electronic discovery and will likely plague our progeny’s progeny when they grapple with photonic or neuronal discovery.  But while an opponent’s “No, we won’t give it to you,” may be frustrating, it’s at least sufficiently straightforward to join the issue and promote resolution.  The abuses lately seen make stonewalling seem like fair play.

Playing the Telephone Game
I’m talking sneaky stuff, like printing electronic information to paper, then scanning and running it through optical character recognition (OCR), or “printing” electronic information to a TIFF image format then OCR’ing the TIFF.

If you’ve played the parlor game, “Telephone,” you’ve seen how transmitting messages introduces errors.  The first listener interprets the message, as does the next listener and the next.  Each mangles the message and the errors compound hilariously.  “Send reinforcements–we’re going to advance” emerges as, “Send three and four pence–we’re going to a dance.”

When you print electronic evidence, part of the message (e.g., its metadata) is lost in the printing.  When you scan the printout, more distortion occurs, and then optical character recognition further corrupts the message, especially if the scanned image was askew, poorly resolved or included odd typefaces.  Page layouts and formatting suffer in the translation process, too.  If you’re lucky, what emerges will bear a resemblance to the original evidence.  If not, the output will be as distorted as the Telephone game message, but no laughing matter.  Much of its electronic searchability is gone.

Speaking on a panel at New York LegalTech 2006, I groused, “Imaging data to TIFF and then OCR’ing it ought to be a crime in all 50 states.”  Was I surprised when that drew applause from the EDD-savvy audience!  Their enthusiastic response confirmed that others are fighting TIFF/OCR abuse, too.

There’s always been gamesmanship in discovery, but it wasn’t hard to detect dirty pool with paper.  Bad copies looked bad.  Redaction stood out.  Page numbers and dates exposed omission.  But e-discovery creates fresh-and-furtive opportunities for shenanigans, and they’re harder to detect and prove.

Take OCR.  We tend to think of optical character recognition as a process that magically transforms pictures of words into searchable text.  OCR is OCR, right?  In fact, error rates for OCR applications vary widely.  Some programs are superb, correctly interpreting better than 99% of the words on most pages, even when the page is askew, the fonts obscure and the scan a mess.  Other applications are the Mr. Magoos of the OCR world, misinterpreting so many words that you might as well retype the document.  In between are OCR apps that do well with some typefaces and formatting and poorly with others.

The OCR application or service provider that processes electronic evidence has an enormous impact on the usability of the production.  Bad OCR insures that text searches will come up short and spreadsheet data will be worthless.  But how do you know when a producing party furnishes bad OCR, and how do you know if it’s an effort to hamper your investigation?  Start by checking whether the other side depends on the same bad data or if they are relying on the pristine originals.

“Even a dog,” observed Justice Oliver Wendell Holmes, “knows the difference between being tripped over and being kicked.”  True, but e-discovery can leave you feeling dumber than a dog when you can’t tell if the opposition’s messing with you or just plain incompetent.  One day, it will be a distinction without a difference for purposes of enforcement–sloppy and slick will both draw sanctions.  Until then, courts need to explore whether the data produced is hobbled compared with that used by the producing party and its counsel.

Level the Playing Field
So how do you deal with opponents who convert native data to naked TIFF formats and deliver bad OCR?  The answer is to insist that the source data stay in its native digital format.  That doesn’t necessarily mean native file production, but be sure that the text and the relevant metadata are ported directly to the production format without intervening OCR.  It’s cheaper, faster and much more accurate.

A level playing field means that the form in which information’s produced to me isn’t more cumbersome or obscure than what’s available to you.  The elements needed to sort, read, classify, search, evaluate and authenticate electronic evidence—elements like accurate text and relevant metadata—should be in my hands, too.

In short, it shouldn’t be much harder to use or understand the information you’ve produced when it’s on my system than when it’s on yours.  This digital Golden Rule has yet to find its full expression in the Sedona Guidelines or the new Federal e-discovery rules, but it’s a tenet of fairness that should guide the hand of every Solomon grappling with e-discovery.

The digital Golden Rule has yet to find acceptance in e-discovery.  Most still see supplying ESI so as to make our opponent’s life harder and costlier as a sound litigation strategy, under the rubric, “zealous advocacy.”  We’ve yet to demark the line that separates “not helping” from “purposefully hindering.”  But after a decade waiting for what goes around to come around, I’m lately encouraged by a growing awareness in requesting parties that they’ve been being made rude love to for a long, long time. Some are starting to respond, “No, thanks” when offered dumbed down data, “I’ll have what you’re having.”

It used to be that lawyers for both sides were clueless, and producing counsel and requesting counsel both used the same garbage.  The dog was stumbled over.  Injury without intent.  Not so now.  It’s common for producing counsel to enjoy the benefits of native review, then degrade the data to TIFFs and load files for production. Now, the dog’s being kicked, and producing counsel responds that, “Rover likes it” or, “If we don’t kick him, he poops on the porch.”

If you haven’t taken a close look at the OCR supplied with production–especially for items that contain comments, tracked changes or redactions–you should.  You’re not going to like what you find.  The new normal in e-discovery is to produce the evidence, but couple it with searchable text so brutalized that there’s little chance you will find what you seek within a sizable production.  

The same double-standard applies to fielded data in databases, metadata in e-mail, speaker notes and animated text in presentations…the list goes on.  Many producing parties have crossed the line from not helping to purposefully hindering.  They’re kicking, not stumbling.  And if they really are stumbling still, isn’t it time to get them off the porch?

Here are producing counsel’s remarks to the Court explaining his gross incompetence in e-discovery, reported in James v. National Financial LLC, C.A. 8931-VCL (Del Ch. Dec. 5, 2014):

“I have to confess to this Court, I am not computer literate. I have not found presence in the cybernetic revolution. I need a secretary to help me turn on the computer. This was out of my bailiwick.” 

This wasn’t said a decade ago.  It was last month.  On the record.  Sure, it’s funny, in the way that someone falling on their keister is funny.  But it’s tragic, and frankly terrifying that a lawyer can make that confession yet bear the responsibility to meet e-discovery obligations imposed by the law and the Court.

C’mon.  We are lawyers.  We are supposed to be better than that.