This is the last post in a series of five providing a roadmap for you to develop your own e-discovery plan. The first post provided an introduction to e-discovery and the E-Discovery Reference Model, which provides the framework for this blog series. The second post addressed the stages of Identification, Preservation, and Collection. The third post addressed Processing standards. The fourth post addressed Review, and this last post will cover Production.  

After review is complete, the next stage is Production. Regardless of your review method, you want to do what you’ve always done: Pull out the responsive documents and confirm you didn’t accidentally sweep in anything privileged.  How you go about doing this will vary greatly based on whether or not you used review software. Even if you used review software, the processes for generating productions are all different. So instead of focusing on how to isolate your production set, we’re going to focus on what you’re going to give to opposing counsel and what you can expect to receive from opposing counsel.

The most important thing to remember about production is “what is good for the goose is good for the gander.” You should produce documents in a similar manner that your receive them. If production methods have not yet been discussed (for example, at a Rule 26(f) or Case Management conference), it’s not too late. Before you send anything out you can still check with the other side to see what they plan on producing. Because you want to exchange the same things. If opposing counsel is not going to give you metadata, you don’t want to give them metadata. And so forth.

There are many different methods or production and the E-Discovery reference model discusses standards for each of them. Productions generally come in the following format (or some combination thereof):

• PAPER – Please don’t produce e-discovery in paper! This helps no one and it’s expensive.
• PDF – If you’ll be producing in PDF format, you’ll need to decide whether you’re providing single or multipage PDFs and whether or not they’re text searchable.  
• OCR (Optical character recognition) – These files make documents text searchable.  If you are using review software, you may already have OCR text files. Confirm that vendors and software programs will take your redactions into account. You don’t want to redact a sentence out of the image, only to provide that same text in an OCR file.
• Single image tiffs with a load file (with or without OCR). These files will enable the recipient to load the documents into e-discovery software. Single image tiffs are image files, one document per page. The Load file tells the software where each document starts and ends and also identifies the metadata associated with each document. Load files can come in specialty formats (DII, DAT, OPT) or TXT or CSV format. You should be able to open all these (except for CSV) using NotePad. A CSV file (comma separated value) can be opened using Excel. Beware that load files can be difficult to interpret before you get the hang of it. Ask your vendor to help you decode them. 
• Natives – it is pretty common to exchange native excels and other multimedia files. The documents should be renamed with the Bates Number.

If you don’t have document review software and you receive a production that is in Tiff/Load File Format with OCR, be aware that they contain a lot of usable information! You can ask a vendor to convert that load file to excel format, and ask them to convert those tiffs to multipage PDFs. Then you can review other parties’ productions in the same manner that we discussed above. Navigate through an excel file, and open PDFs as you go along.

The goal of this blog series was to de-mystify the process of e-Discovery by providing a basic overview. As you execute your e-discovery plan, you will likely develop your own methods and preferences. While the EDRM does provide guidelines and standards, there are many ways of doing things. Good luck!

This is the third post in a series of five providing a roadmap for you to develop your own e-discovery plan. The first post provided an introduction to e-discovery and the E-Discovery Reference Model, which provides the framework for this blog series. The second post addressed the stages of Identification, Preservation, and Collection. This post will address Processing.

After you’ve collected electronic and hard copy documents from your client, the next stage is processing. Vendors “process” data by extracting the relevant metadata and providing the documents in a more user-friendly format. Vendors can also identify and remove corrupt file or files that may have viruses, weed out junk files or zero byte files, and they can also de-duplicate them (de-dupe) by eliminating exact digital copies. They can also run search terms against your documents (all or a sub-set) to identify the documents most likely to contain relevant information.

Before you approach a vendor to process your data, you need to know the size and format of your data. In terms of size, the vendor will want to know how many megabytes (MB) or gigabytes (GB) of data you have. To determine this, navigate to the folder or device containing your data. Right click the properties and determine the size. The screen shot below shows that the folder “Client Docs” contains 343 files totaling 417 MB. Your vendor is just looking for a ballpark figure, so for this data, I would say we have about 400 files totaling one half of a GB (1 GB = 1000 MB).

Your vendor will also want to know what kind of data you have. There are basically two types of e-documents: emails and loose e-documents. Email files are typically in PST (Microsoft Outlook) or MBOX (corporate or personal Gmail) format. These are compressed files, kind of like zip files of an email account. E-documents are everything else: Microsoft office files, PDFs, photos, videos, specialty files (e.g. AutoCAD drawings, QuickBooks exports).

Prior to processing, you’ll need to identify the metadata fields to capture and determine what numbering to use.

For metadata, the E-Discovery reference model provides a standard list of metadata fields and this is a great place to start. You may also want to include the following fields:

• BEGATT, ENDATT – These fields connect emails to their attachments. Emails and their attachments are also called families, where the email is the parent document and the attachments are the children. Emails will have field that shows the number of their attachments, and attachments will have a field that shows the number of the email they were attached to.
• CUSTODIAN – This identifies who or where the documents they came from. You may need to provide this to your vendor, depending on the collection method. 
• Coding Fields – Coding fields are fields that you will have to fill in yourself. They can’t be extracted, because they involve subjective analysis.
  • Summary
  • Attorney Notes
  • Document Description (letter, email, invoice, etc.)
  • Responsive Designation
  • Privilege Designation and Basis
  • Confidentiality level

 The vendor will also number the documents during processing. Each document or page will be assigned a unique number for reference. An internal number (or soft number) is just a reference number, like a bates number that’s not branded on the document. If you branded your internal number, you would end up with gaps in your production (as non-responsive and privileged documents are removed).  An example of an internal number might be: revENRON-000368, with the eventual external number (also called hard number or production number) as ENRON-000008.

In our next post, we will cover review options.

 This is the second post in a series of five providing a roadmap for you to develop your own e-discovery plan. The first post provided an introduction to e-discovery and the E-Discovery Reference Model, which provides the framework for this blog series.

The first phase of your e-discovery plan involves figuring out what documents you need to get and going to get them. Just like any other case, you need documents directly related to the claims and defenses and you need documents requested in discovery. Today’s post will cover the Identification, Preservation, and Collection stages of the E-Discovery Reference Model.

Identification

Your first step will be to identify who the most relevant custodians are and where their data is kept. A custodian is simply a person/place with relevant data. Keep in mind that a custodian could be a network server or drive! The best way to determine where relevant data resides is to ask your client. Ask about computers, servers, mobile devices, backup tapes, paper files, and more. If you need help developing a list of questions, the EDRM can get you started.  The Lawyerist Blog also devoted an entire post to the client interview stage and provides a sample questionnaire.

 Preservation

While asking your client about the location of their relevant data, you’ll also want to ask about your client’s information governance policies. This will include, for example, their e-mail deletion policies, what they do with an employee’s computer/data when they depart the company, and whether they overwrite back up tapes. You can find sample questions related to records management on the EDRM site. Be aware that your client’s information governance policies may be at odds with their duty to preserve (they may have to suspend their e-mail deletion or stop overwriting their back up tapes).

Next you’ll need a litigation hold memo informing your client in writing of their duty to preserve relevant documents. This memo should be distributed, by your client, to relevant custodians and IT staff, and will serve to remind them not to delete electronic documents or shred paper documents related to the litigation. A litigation hold memo can be in the form of a memo, a letter, or an e-mail. Several samples can be found on the internet by Googling the term “litigation hold memo.” If the litigation spans many years, don’t be afraid to follow up with your client; sometimes people forget and employees turn over.

Collection

There are several different options for collection. The EDRM evaluates these different methods and lays out the pros and cons of each. We will focus on the difference between a forensic and a non-forensic collection. 

A forensic collection is when you preserve all aspects of the document’s metadata. This will likely involve a vendor and/or special processing software that copies the entire hard drive or targeted data without altering the metadata.

A non-forensic collection is when you do not preserve all aspects of the document’s metadata. Here are some examples:

• Your client copies loose e-documents to a flash drive or uploads them to the cloud.  At the least, this alters the dates last modified, dates last accessed, and creation dates.
• Your client forwards you e-mails. This significantly altering the email’s metadata – the sender, the recipient, the date sent, and the subject line are all changed.

Additionally, non-forensic collections may omit folder paths and other custodial information. This metadata can be very helpful for you and is worth preserving!

Why does identification, preservation, and collection matter? The failure to identify, collect, and preserve relevant electronic data can lead to spoliation charges, monetary sanctions, and even an adverse inference instruction (because the evidence was not preserved, the jury may infer that the evidence would have been unfavorable to the party responsible for its destruction). You can also lose valuable, helpful data that helps you prove your case!

The next post will address Processing and Review, and will help you figure out what to do with all the data you’ve collected.