Considering the billions of dollars spent on e-discovery every year, wouldn’t you think every trial lawyer would have some sort of e-discovery platform? Granted, the largest firms have tools; in fact, e-discovery software provider Relativity (lately valued at $3.6 billion) claims 198 of the 200 largest U.S. law firms as its customers. But, for the smaller firms and solo practitioners who account for 80% or more of lawyers in private practice, access to e-discovery tools falls off. Off a cliff, that is.
When law firms or solos seek my help obtaining native production, my first question is often, “what platform are you using?” Their answer is usually “PC” or simply a blank stare. When I add, “your e-discovery platform–the software tool you’ll use to review and search electronically stored information,” the dead air makes clear they haven’t a clue. I might as well ask a dog where it will drive if it catches the car.
Let’s be clear: no lawyer should expect to complete an ESI review of native forms using native applications.
Don’t do it.
I don’t care how many regale me with tales of their triumphs using Outlook or Microsoft Word as ‘review tools.’ That’s not how it’s done. It’s reckless. The integrity of electronic evidence will be compromised by that workflow. You will change hash values. You will alter metadata. Your searches will be spotty. Worst case scenario: your copy of Outlook could start spewing read receipts and calendar reminders. I dare you to dig your way out of that with a smile. Apart from the risks, review will be slow. You won’t be able to tag or categorize data. When you print messages, they’ll bear your name instead of the custodian’s name. Doh!
None of this is an argument against native production.
It’s an argument against incompetence.
I am as dedicated a proponent of native production as you’ll find; but to reap the benefits and huge cost savings of native production, you must use purpose-built review tools. Notwithstanding your best efforts to air gap computers and use working copies, something will fail. Just don’t do it.
You’ll also want to use an e-discovery review tool because nothing else will serve to graft the contents of load files onto native evidence. For the uninitiated, load files are ancillary, delimited text files supplied with a production and used to carry information about the items produced and the layout of the production.
I know some claim that native productions do away with the need for load files, and I concede there are ways to structure native productions to convey some of the data we now exchange via load files. But why bother? After years in the trenches, I’ve given up cursing the use of load files in native, hybrid and TIFF+ productions. Load files are clunky, but they’re a proven way to transmit filenames and paths, supply Bates numbers, track duplicates, share hash values, flag family relationships, identify custodians and convey system metadata (that’s the kind not stored in files but residing in the host system’s file table). Until there’s a better mousetrap, we’re stuck with load files.
The takeaway is get a tool. If you’re new to e-discovery, you need to decide what e-discovery tool you will use to review ESI and integrate load files. Certainly, no producing party can expect to get by without proper tools to process, cull, index, deduplicate, search, review, tag and export electronic evidence—and to generate load files. But requesting parties, too, are well-served to settle on an e-discovery platform before they serve their first Request for Production. Knowing the review tool you’ll use informs the whole process, particularly when specifying the forms of production and the composition of load files. Knowing the tool also impacts the keywords used in and structure of search queries.
There are a ton of tools out there, and one or two might not skin you alive on price. Kick some tires. Ask for a test drive. Shop around. Do the math. But, figure out what you’re going to do before you catch that car. Oh, and don’t even THINK about using Outlook and Word. I mean it. I’ve got my eye on you, McFly.