This is the tenth 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.

Locard’s Principle

[Originally published in Law Technology News, February 2006]

Devoted viewers of the TV show “CSI” know about Locard’s Exchange Principle: the theory that anyone entering a crime scene leaves something behind or takes something away.  It’s called cross-transference, and though it brings to mind fingerprints, fibers and DNA, it applies to electronic evidence, too.  The personal computer is Grand Central Station for smart phones, thumb drives, MP3 players, CDs, floppies, printers, scanners and a bevy of other gadgets.  Few systems exist in isolation from networks and the Internet.  When these connections are used for monkey business like stealing proprietary data, the electronic evidence left behind or carried away can tell a compelling story. Continue reading →

This is the ninth 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.

The Path to Production: Are We There Yet?

(Part IV of IV)

[Originally published in Law Technology News, January 2006]

The e-mail’s assembled and accessible.  You could begin review immediately, but unless your client has money to burn, there’s more to do before diving in: de-duplication. When Marge e-mails Homer, Bart and Lisa, Homer’s “Reply to All” goes in both Homer’s Sent Items and Inbox folders, and in Marge’s, Bart’s and Lisa’s Inboxes.  Reviewing Homer’s response five times is wasteful and sets the stage for conflicting relevance and privilege decisions.

Duplication problems compound when e-mail is restored from backup tape.  Each tape is a snapshot of e-mail at a moment in time.  Because few users purge mailboxes month-to-month, one month’s snapshot holds nearly the same e-mail as the next.  Restore a year of e-mail from monthly backups, and identical messages multiply like rabbits. Continue reading →

This is the eighth 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.

The Path to Production: Harvest and Population

(Part III of IV)

[Originally published in Law Technology News, December 2005]

On the path to production, we’ve explored e-mail’s back alleys and trod the mean streets of the data preservation warehouse district.  Now, let’s head to the heartland for harvest time.  It’s data harvest time.

After attorney review, data harvest is byte-for-byte the costliest phase of electronic data discovery.  Scouring servers, local hard drives and portable media to gather files and metadata is an undertaking no company wants to repeat because of poor planning.

The Harvest
Harvesting data demands a threshold decision: Do you collect all potentially relevant files, then sift for responsive material, or do you separate the wheat from the chaff in the field, collecting only what reviewers deem responsive?  When a corporate defendant asks employees to segregate responsive e-mail, (or a paralegal goes from machine-to-machine or account-to-account selecting messages), the results are “field filtered.” Today, we’d call this “targeted collection.”

Field filtering holds down cost by reducing the volume for attorney review, but it increases the risk of repeating the collection effort, loss or corruption of evidence and inconsistent selections.  If keyword or concept searches alone are used to field filter data, the risk of under-inclusive production skyrockets.

Initially more expensive, comprehensive harvesting (unfiltered but defined by business unit, locale, custodian, system or medium), saves money when new requests and issues arise.  A comprehensive collection can be searched repeatedly at little incremental expense, and broad preservation serves as a hedge against spoliation sanctions.  Companies embroiled in serial litigation or compliance production benefit most from comprehensive collection strategies.

A trained reviewer “picks up the lingo” as review proceeds, but a requesting party can’t frame effective keyword searches without knowing the argot of the opposition.  Strategically, a producing party requires an opponent to furnish a list of search terms for field filtering and seeks to impose a “one list, one search” restriction.  The party seeking discovery must either accept inadequate production or force the producing party back to the well, possibly at the requesting party’s cost. Continue reading →

This is the sixth 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.

The Path to E-Mail Production

(Part I of IV)

[Originally published in Law Technology News, October 2005]

Asked, “Is sex dirty,” Woody Allen quipped, “Only if it’s done right.”  That’s electronic discovery: if it’s ridiculously expensive, enormously complicated and everyone’s lost sight of the merits of the case, you’re probably doing it right.

But it doesn’t have to be that way.  Over the next four days, we’ll walk a path to production of e-mail — perhaps the trickiest undertaking in EDD.  The course we take may not be the shortest or easiest, but that’s not the point.  We’re trying to avoid stepping off a cliff.  Not every point is suited to every production effort, but all deserve consideration.

Think Ahead
EDD missteps are painfully expensive, or even unredeemable, if data is lost. Establish expectations at the outset.

Will the data produced:

• Integrate paper and electronic evidence?
• Be electronically searchable?
• Preserve all relevant metadata from the host environment?
• Be viewable and searchable using a single application, such as a web browser?
• Lend itself to Bates numbering?
• Be easily authenticable for admission into evidence?

Meeting these expectations hinges on what you collect along the way through identification, preservation, harvest and population. Continue reading →