I am not a dinosaur.  Except that I prefer e-mail to texting, and I forget that my students have never used a record player or lived without the Internet.  I’m not near the national average of 14 daily visits to Facebook, and I’ve yet to text a photo of my genitals–a practice so routine that it has a name, “junk shots” and its very own app, “Snapchat.”  When I need to know how to turn off a nagging dashboard light, I prefer written instructions over YouTube, and I do not video every concert and papal investiture I attend.  I still have two landline phone numbers.

Omigosh!  That last one.  I AM a dinosaur!

According to the U.S. Center for Disease Control, more than 41% of American households have no landline phone, relying on wireless service alone.  For those between the ages of 25 and 29, two-thirds are wireless-only.  Per an IDC report sponsored by Facebook, four out of five people start using their smartphones within 15 minutes of waking up and, for most, it’s the very first thing they do, ahead of brushing their teeth or answering nature’s call.

I cite these astonishing statistics to underscore a tendency in e-discovery to seek information in those places where we’ve grown comfortable despite compelling evidence that relevant information is elsewhere.  I’ve written on this “Streetlight Effect” before (at p. 252 of this collection of articles), in the context of the blind eye long turned to shortcomings of keyword search.  The latest manifestation is graver still, and will make for a perilous future if we do not rise to the challenge now.

I speak of the rapid accretion of unique, relevant data on mobile devices that has greatly outstripped our ability (or willingness) to preserve and process same.  Look around you.  Do you see the look down generation out there?  Why do you suppose the person in front of you on the jetway is walking so #$%^& slowly?

Apple just sold ten million units of its latest iPhone.  Ten million.  In a week.  How many of those purchasers sought a better device for making phone calls?  Did Apple even hint it had improved the phone as a phone?  No siree, Bob! Continue reading →

I once wrote a column titled “Page Equivalency and Other Fables.”  It lambasted lawyers who larded their burden arguments with bogus page equivalencies like, “everyone knows a gigabyte of data equates to a pile of printed pages that would reach from Uranus to Earth.”  We still see wacky page equivalencies, and “from Uranus” still aptly describes their provenance.

Back in 2007, I wrote, “It’s comforting to quantify electronically stored information as some number of pieces of paper or bankers’ boxes.  Paper and lawyers are old friends.  But you can’t reliably equate a volume of data with a number of pages unless you know the composition of the data.  Even then, it’s a leap of faith.”

So, I’m happy to point you to some notable work by my friend, John Tredennick.  I’ve known John since the emerging technology was fire and watched with awe and admiration as John transitioned from old-school trial lawyer to visionary forensic technology entrepreneur running e-discovery service provider, Catalyst.  John is as close to a Renaissance man as anyone I know in e-discovery, and when John speaks, I listen.

Lately, John Tredennick shared some revealing metrics on the Catalyst blog looking at the relationship between data and document volumes, an update to his 2011 article called, How Many Documents in a Gigabyte?  John again examines document volumes seen in the data that Catalyst receives and processes for its customers and, crucially, parses the data by file type.  As the results bear out, the forms of the data still make an enormous difference in terms of data volume.  Even as between documents we think of as being “the same” (like Word .doc and .docx formats), the differences are striking.

For example, John’s data suggests that there are almost 60% more documents in a gigabyte of Word files in the .docx format (7,085) than in a gigabyte of files stored in the predecessor .doc format (4,472).  This makes sense because the newer .docx format incorporates zip compression, and text is highly compressible data.

[One exercise I require of the law students in my E-discovery class is to look at the file header of a Word .docx file to note its binary signature, PK, characteristic of a zip-compressed file and short for Phil Katz, author of the zip compression algorithm.  For grins, you can change the file extension of a .docx file to .zip and open it to see what a Word document really looks like under the hood.  Hint: it’s in XML].

John reports a similar discrepancy between new and old Excel spreadsheet formats (1,883 .xlsx files per gigabyte versus 1,307 for .xls).  Here again, the .xlsx format builds in zip compression.

But, the results are reversed when it comes to PowerPoint presentations, with John finding that there are marginally fewer of the newer .pptx files in a gigabyte (505) than the older .ppt format files (580).  This makes sense to me because Microsoft phased out the .doc format ten years ago.  Since then, presenters have gotten better about adding visual enhancements to deadly-dull PowerPoints, and they tend to add ‘fatter’ components like video clips.  The biggest factor is that pictures are highly incompressible, and common image formats (i.e., .jpg images) have always been compressed.  Compressing data that’s already compressed tends to increase, not decrease its size.

Wisely, John speaks only of document volumes and makes no effort to project page equivalencies, not even by extrapolating some postulated ‘average-pages-per-file type.’  Anything like that would be as insupportable today as it was when I wrote about it in 2007.  Also, when you look at John’s post, note that there is no data supplied concerning TIFF images.  I’m not sure why, but I can promise you this: TIFF images are MUCH fatter files, costing far more in terms of storage space and ingestion costs than their native counterparts.  Had John added TIFF to the mix, I’m confident his weighted averages would have been much different…and far less useful–much like TIFF images as a form of production. 😉

As the curtain comes down on 2013, I’m reflecting on where the weeks went.  This was the year of fights about forms; months spent endeavoring to persuade courts, opponents (and even my clients) that lawyers and judges have been peering into the wrong end of the telescope when it comes to forms of production. We must stop focusing on the feeble forms lawyers use for review, and concentrate on the robust forms that parties use for everything else.

In discovery and disclosure we seek information from parties and third-parties.  We want the data used and created by, for and about parties and third-parties relating to the actions they took or didn’t take.  We don’t pursue discovery/disclosure against the lawyers in the case.  If we tried, our efforts would be confounded by claims of attorney-client privilege and attorney work product.  Apart from pro se lawyers with fools for clients, attorneys aren’t parties, and attorneys aren’t witnesses.  The forms your opposing counsel uses for review shouldn’t matter.  Discovery and disclosure is party-centric, not attorney-centric.

Ask parties about the forms of ESI they use daily and it’s doubtful you’ll hear a peep about TIFF images or load files.  Parties don’t use that junk; only Luddite lawyers do.  Clients use spreadsheet programs, word processors, mail and messaging applications and databases, to name a few.  When they create, communicate and collaborate, they do it using forms geared to native applications with file extensions like .XLSX, .DOCX, .PPTX, .MSG, etc.  They choose and use functional and complete native and near-native forms.  Those are the forms witnesses consult to reconstruct events and refresh their memories.  Those are the forms witnesses recognize at deposition and in trial. Continue reading →

I’m surprised how frequently I’m engaged to collect the contents of Gmail accounts in e-discovery, especially when the account is being collected solely for preservation, and there’s no compelling reason to entrust the task to a neutral.  I appreciate that hiring an expert offers greater assurance that the task will be approached with skill and experience, as well as that integrity of process can be supported by the testimony of someone unconnected with the client or law firm.  But, though collecting and validating the complete contents of a Gmail account can be tricky and tedious, it’s not all that difficult to do.  Happily, unless you do something really dumb, it’s unlikely that even a botched Gmail collection effort will harm the contents of the account.

For those seeking a low-cost, defensible mechanism to preserve Gmail content, this (long, dry) post lays out a detailed methodology for collection and preservation of the contents of a Gmail webmail account in the static form of a standard Outlook PST container file.  I will address various technical considerations, but few legal ones.  Whether or not the methods described in this post are legally sufficient in your case or compliant with Gmail’s terms of service is not my call, and I offer no opinions about same.

[NOTE TO READERS 10/14/14: When I wrote this post, there was not yet a backup capability built into Gmail.  Google  now makes data tools available that support the creation of a rich archive of a user’s Google content, including, Gmail, Contacts, Calendar and Google Drive.  You can find it the Archive section of https://www.google.com/settings/datatools when logged into Google and can read more about it here.]

Continue reading →