The Evolution of eDiscovery

The term eDiscovery has been the buzzword in the legal field for the past several years. Since I began in Litigation Support in the late 1990s, I have personally witnessed the evolution of eDiscovery.

The term eDiscovery is the electronic aspect of identifying, collecting and producing electronically stored information (ESI) in response to a request for production in a law suit or investigation. Electronically stored information can be emails, documents, presentations, spreadsheets, databases, voicemails, audio and video files, social media and websites. Anything electronically stored can potentially be eDiscovery.

I remember back in the day when an investigator told me that he had a few boxes of documents that needed to be bates numbered and scanned. The “few” boxes turned into a van full of banker’s boxes. I learned that people have different definitions for the word “few”. So, I worked with a legal assistant the entire week manually applying bates labels to every page in those “few” banker’s boxes before scanning them.

We’ve come a long way.

I rarely see boxes of paper anymore. I still have a high-speed, high-volume scanner and I run paper through it occasionally to keep it in working order. Today, I mostly see hard drives, flash drives, discs and shared folder downloads.

In the early days of eDiscovery, the magic word was “metadata” that freaked everyone out when they realized that there was hidden data inside of most electronic documents. I laughed at the common definition of metadata at the time about it being “data about data”. That really didn’t explain the term very well to the legal staff looking at me like deer in headlights. Metadata is hidden information that is contained in any electronically stored data. This can be date created, date modified, who modified it and other pertinent information about the data that you can’t see just by opening the file in it’s native software. For instance, if you open a Microsoft Word document, you can’t see who created it or who modified it as well as additional information that isn’t visible to the average user.

We’re dealing with less paper today but…

I used to cringe at the news of having rooms of banker’s boxes in a case, now just one 4TB hard drive can force me into the fetal position. There is a whole lot more data to sort through today.

The depth of eDiscovery can come in many forms such as smart phones, computers, flash drives, emails and so much more. Just when you think you’ve covered it all, there is always something else you’ve missed. It can really be scary at times. I used to worry about missing something but now I have learned only to focus on what I have, not what I don’t have.

The tools used for eDiscovery continue to improve. When I first started in this journey, I had a system called “DocStar” which became my office’s first document processing workstation. It was a start. Fortunately, the technology has changed. We now have complex systems that are designed to process many types of electronic data. I’m glad to see the advancements in software to meet the challenges of eDiscovery.

Even with the voluminous volume of electronic discovery today, I am not longing for the days we had paper and sitting in a room for days applying physical bates labels to paper documents. I don’t want to go back. I’m looking forward to the future.

Discovery and Mac Users

Mac1I have dealt with issues lately with opposing counsel asking that I convert electronic discovery into a format for their Macs.  I won’t tell you what I REALLY said but I have always been very rigid about turning over data to opposing counsel in the way we have received it.  This issue with law firms having Macs and discovery defies common sense.  Let’s say it like this….if we were turning over paper that was in Chinese, would we be responsible for translating those documents?  Heck no.  No one would trust the other side for translating it for them.

Another thing about these Mac-only firms.  That can’t be an excuse.  Just go out and buy a Windows laptop.  Goodness sakes people.

So what are we – as litigation technology specialists – supposed to do with this?

As far as Electronically Stored Information (ESI) goes, the U.S. Courts have an ESI protocol which states:

b.  ESI received from third parties should be produced in the format(s) it was received or in a reasonably usable format(s).  ESI from the government’s or defendant’s business records should be produced in the format(s) in which it was maintained or in a reasonably usable format(s).

d. When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.  For example, the producing party need not convert ESI from one format to another or undertake additional processing of ESI beyond what is required to satisfy its legal disclosure obligations.

Always check with your local courts regarding their policy on how to handle ESI.  Personally, I wouldn’t want to convert discovery for opposing counsel in fears that it would alter the data in some way or that something would be corrupted in the conversion process.  It just doesn’t make sense to do it.  Of course, if someone asks for a single file or two and they understand the process, I would do it but not entire volumes of discovery.

We are not responsible for the operating systems chosen by each individual opposing counsel.  It’s just silly that because they don’t have the compatible system with which to run certain applications that we should do anything to the data.  I’m sure most reasonable people can see the potential problems of catering to those who have Macs or any other forms of computer operating systems.

In today’s world, most Windows-based software have a Mac version which can be downloaded and installed.  There are times when this isn’t the case, especially when working with surveillance videos and third-party software.  I had an issue once when a company using their own proprietary software was not compatible with Macs.  The opposing counsel in this case simply went to Staples and purchased a Windows laptop.

Sure, there are some problems with Macs opening some executable files and other Windows-compatible programs.  Honestly, there have been many times I have received data which could not be accessed on our computer so I just purchased what was needed to open it.  Nothing difficult about that.  For instance, many times we have received QuickBooks files and we do not have the software so I just had to go through the process of getting it.  Not much you can do about that.  I couldn’t stop and just say we can’t open it.  Yeah, I don’t see that working out for me.

Another way to resolve Mac issue is to make the discovery available for review.  Set up an office or conference room with a Windows PC and let the opposing counsel know they can spend the day at your office reviewing the discovery.  You will find that they will usually opt to purchase a Windows laptop.

I have found that some Mac users are very adamant about their Macs although they are seriously outnumbered in the computer world.  It’s almost an offense to them if you don’t have Mac-friendly data.  Okay, well, let’s slide back over into the REAL world now.  Windows still rules whether we like it or not.  That’s just the way it is.  With the volumes of electronic data we deal with on a daily basis, we simply have to use the tools to get the job done.