I’ve been on something of an e-discovery crusade for the last few years.  No, not my Quixotic, decade-long, “Native Production is More Utile and Efficient” crusade.  This is the other, later-but-just-as-frustrating crusade I call, “Mobile to the Mainstream.”  It’s a relentless, battleship-banging effort to foster recognition that mobile devices and their online information ecosystems are the most important sources of probative electronic evidence we have today.  Unless privileged, mobile evidence should be routinely preserved and produced in mainstream electronic discovery.  Honestly, shouldn’t that be obvious to even the most casual observer of modern life?

That mobile evidence is routinely ignored in civil matters by counsel, government and industry is troubling, and defended–if defended at all–by pointing to the alleged burden and technical “forensic-ness” of marshalling phone content.  I’ve countered with articles showing the ease with which iPhone content can be preserved, extracted and searched–at little to no cost and, crucially, without separating custodians from their devices.  The “trick” for Apple iOS devices was exploiting iTunes, and it was a good trick because iTunes is free, easy to use and supported by Apple on both Mac and Windows platforms around the world.

Then, Apple lately announced it was doing away with iTunes.  ARRRRGGHHH! 😱😖😭

But, no worries, the iPhone backup methodology I’ve put forward is still going to work after Apple releases the new Catalina operating system and cleaves iTunes into dedicated apps for music, podcasts and TV.  In fact, preserving iPhones may be easier for Mac users as Apple is shifting the backup tool into the Finder app.  You’ll do exactly the same thing I wrote about but Mac users with Catalina won’t even need to use iTunes to preserve mobile evidence.  It’ll be built in.

From what I understand, Windows users will still have an app for the task, probably iTunes for the foreseeable future.  So, I’m relieved to know that the “demise” of iTunes won’t be a barrier to simple, scalable preservation of iPhone content.  Things may even get a little easier.

Is there a war on e-discovery?  Sounds like a paranoid notion, but the evidence is everywhere.  The purpose of discovery is to exchange information bearing on matters in litigation, particularly material tending to prove or disprove the parties’ claims and defenses.  The soul of discovery is disclosure of relevant records and communication, limited by privilege and proportionality. So, you’d think the focus of e-discovery would be on where information resides and the forms it takes, on how to preserve it, collect it and produce it.  That was what we talked about a decade ago, but, no more.

Now, when I look at the composition of e-discovery education, I’m flummoxed by how the tide has turned to anti-discovery topics.  Instructing lawyers how to surface information has been steadily supplanted by how to keep information at bay and defend failures to disclose. There is no balance between supporting the right to obtain information and the right to withhold it.

Proportionality is about limiting the scope of discovery.  Privacy and GDPR seek to limit access to information.  Cost control is code for circumscribed discovery.  Even cybersecurity tends to be positioned to confound discovery.  I see discussions of “streamlining” privilege logs that advocate giving as little information as possible about items withheld on claims of privilege.  Considering the regularity with which privilege claims are abused, shouldn’t we require greater specificity be brought to logging so that privilege stops being the black hole in which we hide everything we don’t want to hand over?  Privilege is anathema to evidence and must be narrowly construed.  No one talks about that.

Don’t get me wrong.  These are important topics.  Discovery needs to be just, speedy and inexpensive.  But why do we keep forgetting that there’s a comma in there?  Will we ever balance our self-interest in advancing our client’s wishes against our common interest in a justice system that serves everyone? Continue reading →

I read a couple of good articles on the e-discovery implications of the Mueller report and tweeted,

“The Mueller report underscores why image+ productions are ridiculous. Compare the OCR to the true text. It’s a mess, so search is off. Image files many times larger than the native, ergo much more costly to load, store, host, transmit. BTW: YES, you CAN redact a Word file. It’s XML!”

This bears fleshing out, and I want to do it by sharing a simple trick enabling you to peer inside the raw guts of a Microsoft Word file and understand why native redaction isn’t the pipe dream some try to make it.  But first, let’s unpack the jargon.

“Image+” or “TIFF+” productions refer to the common practice of fixing the content of a document by printing the file to a static image format like TIFF or PDF.  I use “fixing” in the sense of making something permanent, but it’s also accurate to use it the way we speak of “fixing” a cat; that is, cutting its balls off.

The “plus” in TIFF+ refers to the need to supply the native file’s searchable text and application metadata in ancillary load files to accompany the page images.  That is, rather than supply the evidence, producing parties degrade it to a deconstructed “kit” version of the evidence that requesting parties must load into review platforms to restore a crude level of searchability. This enables producing parties to suppress content (like embedded comments, speaker notes and changes in text documents) and much of the application metadata of the original.  It also neuters the evidence.  It’s no longer functional in the programs that created it, like Word, PowerPoint or Excel.

I’ve written extensively about this elsewhere (e.g., Lawyers’ Guide to Forms of Production ), and I try to present the pros and cons of TIFF+, notwithstanding my belief that the cons decidedly outweigh the pros.  It largely comes down to Bates numbers and disagreement about how and when those fetishistic Bates identifiers should be added to evidence and at what absurd cost.

TIFF+ enables producing parties to sidestep their obligation to review unprinted information for responsiveness and privilege.  Instead, they silently make that content disappear like a “fixed” cat’s testicles.  To be fair, most lawyers know so little about ESI processing that they are blissfully unaware it’s happening, so they deny it with genuine equanimity.  When you force them to acknowledge the spoliation, they fall back on claiming that, whatever they excised and didn’t review wouldn’t have been worth the trouble of reviewing or producing.  Genius, right?

Apart from what’s missing from the dumbed-down data, the big objection I offer to TIFF over native productions is the huge size difference between them.  TIFF productions are much, much fatter.  Though information and utility has been stripped from the images, the degraded set is nonetheless many times larger (measured in bytes) than the native originals.

Because most e-discovery service providers price their wares by the gigabyte volume going into, onto and out of their systems, bigger files mean bigger bills.  Much bigger files mean…well, you get it.

Perhaps you’re thinking, “Craig, you sad, sad Cassandra; how much bigger can these image sets be than their native counterparts?”  Would ten times bigger surprise you? Well, then surprise!  But, they’re usually more than ten times larger.  It’s not a one-off rip-off either.  Most hosted platforms charge you for the fatter file volume every month.  Over, and over, and over again.

Sucker. Continue reading →

It’s that semiannual time when I revise my E-Discovery Workbook in advance of the Georgetown Law Center eDiscovery Training Academy.  That means foregoing sunny Spring days in The Big Easy to pore over 500 pages of content and exercises to make them as durable and endurable as I can.  More-and-more, I find I’m adding historical perspectives.  It’s a fair criticism that, with so much to cover, I should restrict my focus to contemporary technologies and leave the trips down memory lane to my dotage.

I can’t help myself.  Though we’ve come far and fast, the information technologies of my youth are lurking just beneath the slick surfaces of the latest big thing.  The punch card storage and tabulation technologies Herman Hollerith (1860-1929) used to revolutionize the 1890 U.S. census are just a hair’s breadth behind the IBM card technologies that dominated data processing for much of the 20th century and cousin to the oily, yellow perforated paper tape that Bill Gates and I used on opposite coasts to learn to program mainframe computers via a teletype terminal in the 1970s.  The encoding schemes of that obsolete media differ from those we use today principally in speed and scale.  The binary fundamentals are still…fundamental, and connect our toil in e-discovery and computer forensics to the likes of Charles Babbage, Alan Turing, Ada Lovelace, John von Neumann, Robert Noyce and both Steves (Wozniak and Jobs).

In the space of one generation, we have come very far indeed. Continue reading →