Post Process

Everything to do with E-discovery & ESI

Archive for the ‘EDD Processing’ Category

Case Blurb: Covad; Don’t blame the processing platform

Posted by rjbiii on September 2, 2009

Post Process: Previous decisions in this contentious case required, among other things, that the producing party submit itself to a third party forensics expert for an examination of its search protocol. In the instant decision, producing party was defending the fact that, after having produced e-mail in hard copy format, and then being ordered to re-produce it in native format, it only produced a native sub-set of the original imaged production. The producing party, in effect, blamed the processing platform for its difficulties in reconciling the two production sets. The court responded:
While the nature of the discrepancy is not explained, I have to assume that fewer e-mails have been produced in native format than were produced on paper. Revonet explains that the platform that Revonet originally used to search for documents was only capable of exporting documents to an HTML format. Thus, Revonet had to use a different platform to obtain .pst files and therefore could not re-run the original search exactly. This may explain the discrepancy. Neither party provides information about the magnitude of the discrepancy, however, largely because Revonet claims that it would be too burdensome for it to cross-reference the electronic documents against the hard copies to determine how many and which e-mails are missing.

While I appreciate that it would be difficult for Revonet to go back through its papers to determine whether all of the documents contained therein have since been produced and that Revonet’s present counsel did not supervise or conduct the August, 2008 search for e-mails, I also appreciate that it is a burden of Revonet’s own making. Covad should not be penalized by Revonet’s failure to maintain its discovery materials in some sort of organized fashion or keep some record of its own actions in this lawsuit. Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (“[P]roducing party must preserve the integrity of the electronic documents it produces. Failure to do so will not support a contention that production of documents in native format is overly burdensome.”).

Post Process: In other words, a burden of one’s own making is not a basis for asserting undue burden. Another maxim: choose your platform wisely.

Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009).

Posted in 4th Circuit, Case Blurbs, D.D.C., EDD Processing, EDD Vendors, Form of Production, Magistrate Judge John M. Facciola | Leave a Comment »

Does Outsourcing Lit Support to other Countries endanger Constitutional Protections?

Posted by rjbiii on June 19, 2008

K&L Gates has posted an article describing one law firm’s effort to obtain guidance on the issue whether transmitting data to foreign service providers waives fourth amendment protections with respect to that data.

The issues posed arising a scenario in which a service provider (in this case, Indian based Acumen Legal Services (India) Pvt., Ltd.) seeking to provide services to a law firm (Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, “NMH”) is probably already providing services to attorneys who either compete with NMH or who represents interests that are adversarial to NMH’s clients. The questions posed in the complaint were whether:

1) its own electronic transmission of client data will affect a waiver of Fourth
Amendment protections to that data,
2) John Doe Esq. or Jane Doe, Esq.’s electronic transmission of non-client
data (such as data produced to John Doe, Esq. and Jane Doe, Esq. during civil discovery)
will waive Fourth Amendment protections to such data,
3) NMH, John Doe, Esq., and Jane Doe, Esq. are required to obtain prior
consent of the owner of such data prior to electronically transmitting it to a foreign
national residing overseas,
4) LPOs, such as Acumen, have an obligation to disclose the likelihood of
Fourth Amendment waiver with respect to data that is electronically transmitted to
foreign nationals residing overseas, and
5) President Bush has an obligation to establish intelligence gathering
protocols for the purpose of safeguarding Fourth Amendment rights with respect to
attorney communications to and from foreign nationals residing overseas.

K&L’s post has a link to the complaint, for those interested. Although this particular case applies to criminal cases, decisions here will affect all types of cases in a myriad of ways. One concerned Outsourcing company has posted its opinion on the matter.

Posted in 4th Circuit, Articles, D.D.C., EDD Industry, EDD Processing, EDD Vendors, International Issues, Judge Colleen Kollar-Kotelly | Tagged: , , | Leave a Comment »

EDRM Releases its new Standard for Production

Posted by rjbiii on October 24, 2007

The Standards Group for EDRM released a new, xml-based standard designed to ease migration from one litigation platform to another:

“In the past, there hasn’t been a standard way to hand off [information] from one step of e-discovery to the other,” said Leafstrand. “With no validation tools to make sure you have done it right, it’s been a very hit-and-miss, labor-intensive operation.”

Very true. Perhaps the largest part of “manual” labor that goes into the average project centers on “massaging” the data into the a format acceptable to the recipient’s particular system. Although many of these formats have become de facto standards, there are still often nuances and requests that fall outside the norm. This makes a good data integrator nearly invaluable. If some of the more tedious tasks can be eliminated, I’m all for it. I doubt, however, that the standard will be a panacea for the industry. Keep your experienced data integrators happy; you still need them.

Posted in Articles, EDD Industry, EDD Processing, Electronic Discovery Reference Model, Tools, Trends | Leave a Comment »

Definitions of “Document” and “Communications” included in discovery requests

Posted by rjbiii on October 18, 2007

I’ve just read an opinion highlighted by The Electronic Discovery Blog, where a paper production was found to be insuffient, so the court ordered a production in electronic format. The opinion notes that the discovery request included a definition of the terms “document” and “communications:”

“Communications” means any transmittal of information in any form or format, whether oral, written, or electronic, including, without limitation, all correspondence, inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations and message logs, letters, notes, memoranda, telegrams, faxes, emails, or recordings. It is understood that all categories of documents described above shall include with respect thereto all communications as defined, whether or not expressly stated. The production of electronic communications should be accompanied by a description of the software and technology used to prepare the communications and needed to read them.

The term “document” means all writings of any kind, including the originals and all nonidentical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including without limitation, correspondence, e-mail, memoranda, notes, diaries, statistics,
checks, statements, receipts, returns, summaries, pleadings, affidavits, depositions, pamphlets, books, prospectuses, inter-office and intra-office communications, offer notations of any sort of conversations, telephone calls, meetings or other communications, bulletins, printed matter, computer printouts, information contained in any computer although not yet printed in hard copy, teletypes, telefax, invoices, worksheets, and all drafts, alterations, modifications, changes and amendments of any of the foregoing), graphic or oral records or representations of any kind, (including without
limitations, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures) and electronic, mechanical or electrical records or representations of any kind, (including without limitations, tapes, cassettes, discs, recordings).

John B. v. Goetz, 2007 U.S. Dist. LEXIS 75457 (M.D. Tenn. Oct. 10, 2007) (emphasis in the opinion).

We just posted about an article on CNet describing how the definition of the term “document” has been expanded. I do have an issue with defining a document (as is done above) as “information contained in any computer although not yet printed in hard copy.” That seems rather nebulous. A document, I believe, is a coherent unit of information that may consist of a single file (a simple Word or Adobe file) or may consist of multiple files (an html page that includes images and the like separately, or a Word file that links to graphs and spreadsheets).

Posted in Discovery, Discovery Requests, EDD Basics, EDD Processing | Tagged: , , | Leave a Comment »

Automating the Redaction Process

Posted by rjbiii on October 15, 2007

Anyone who has sat at a desk, late at night, redacting documents with a marker (or doing so using an electronic tool) knows what a labor intensive, painful and mundane chore it is. Well, IBM says you need dread redacting no longer:

Xerox and researchers from its Palo Alto Research Center debuted “Intelligent Redaction,” new software that automates the process of removing confidential information from any document. The software includes a detection tool that uses content analysis and an intelligent user interface to protect sensitive information. It can encrypt only the sensitive sections or paragraphs of a document, a capability previously not available, Xerox said. The software also creates an audit trail for tracking access.

After information has been classified, that same information will be automatically redacted if it appears in other documents. the “intelligence” ensures a consistent level of security, saves time and increases redaction accuracy, Xerox said. Redaction is the ability to control what someone sees. For example, redaction traditionally has been used in legal documents to limit access to information protected by client-attorney privilege. The result is a document that has been censored; certain information within the document is blocked out, Xerox said in a statement.

The article states that automating the process not only relieves us of the labor, but also helps in managing different versions of documents that end up being redacted differently. The application is not yet available, and no date was given for future release.

Posted in Articles, EDD Processing | Leave a Comment »

Michael Rhoden dreams while Ralph Losey cooks up some hash

Posted by rjbiii on September 12, 2007

Michael Rhoden is an ex-coworker of mine, and is a partner at Ethical Solutions.
Michael has a dream (project) for EDD. Here’s how he laid it out during “death of the bates number” discussion on litsupport Yahoo! group.

The best managed projects that I have seen start with a prefix/numbering system at the native file level, and build on the system going forward. If I could build a “dream” process, it would go something like this:

*
Unbundle your files for native file review. Break emails and attachments, zipped collections, etc. into separate documents.
*
Extract metadata from the files and build a database. The database will include “extrinsic metadata” such as information about parent/child relationships and original file path.
*
Assign a unique identifier to each file. The file may be renamed (and the original name stored in the database) or simply placed in a folder that is named for the unique identifier.
*
The unique identifier may signal the case and custodian. For instance, the prefix ABC111 could signal “ABC case” and “111 custodian.”
*
When it comes time to go to create images/paper and you need specific page identifiers, then add a suffix to the unique identifier for the file. It might get a bit unwieldy (e.g., ABC111_00000001_000001), but it will be easy to track an image back to its native file, custodian, and case.

A post by Ralph Losey on how to abbreviate the hash code in order to create a relevant bates number fits nicely into this discussion, although implementing it would shatter Michael’s dream (sorry Mike-blame Ralph).

The authentication properties of hash have long been known and used in e-discovery, but there was a serious problem with also using hash as a naming protocol: hash values are way too long. The two most common kinds of hash are called MD5 and SHA-1. An MD5 hash is 32 alphanumeric values, and the SHA-1 has 40 places. Here is an example of the shorter MD-5 hash:

5F0266C4C326B9A1EF9E39CB78C352DC

That is too long a number for humans to use to identify an electronic document. For that reason, hash was deemed impractical for use as a document naming protocol, even though it had tremendous advantages in authenticity control.

That is where I got the “big idea” last September to truncate the hash values and just use the first and last three places. Under that system the above hash becomes the much more manageable:

5F0.2DC

Ralph says that it has been calculated that this abbreviated form would avoid collisions (i.e., duplicate numbers for different documents) 98.6% of the time. You can read the full article detailing the procedure by clicking here (pdf).

Posted in Data Manipulation, EDD Processing, Form of Production | 1 Comment »