E-Discovery for All Sizes

By Jeff Bennion, Esq.

When most attorneys think of e-discovery, they probably think about large mass torts or class actions involving terabytes of data. They probably also think about the relatively new, distinct set of rules governing e-discovery, the sanctions for non-compliance, and the tremendous costs associated with the processing and review of electronic files. These are reasons why most attorneys avoid working on cases involving e-discovery. The truth is that if you are a litigator, it is getting harder to avoid e-discovery. If you have a case with parties or witnesses who use email, social media, or text messages, you have a case where you might be receiving or needing discovery requests involving electronically stored information. E-discovery has crept into areas of family law, personal injury, employment law, intellectual property, business litigation, and others. For those unfamiliar with the nuances of e-discovery, here is a list of some helpful hints.

1. The format of your discovery requests is important. CCP 2031.030(a)(2) allows the requesting party to specify the form or forms in which each type of electronically stored information is to be produced. The forms of production are typically: 1) native, 2) tiff or PDF images, or 3) paper. Failure to specify the form of production means that the opposing party might produce the documents in a form that is less useful to you, and you might be barred from asking for that same discovery again or subject to discovery sanctions for trying seek an order from the court compelling production of the same documents in a different format.

   Native files are files that open in the program in which they were created. When you double click on a Microsoft Word file, it opens in Microsoft Word. Same with an Excel, or a PowerPoint file. Native files give the user a lot of information about each file that would otherwise not be available in the other formats. For example, a Word file might have track changes enabled or comments to show revisions that were made to each version of a draft. A PowerPoint might have presenter’s notes on each slide that would not show up in a printed or scanned version of the document. An Excel file might have formulas in each cell that would only be visible when you click on each cell. The formulas would show how the data in each cell is calculated. Large Excel files are also very difficult to review when printed. If your Excel file has 500 rows and 40 columns, the column or row header information might be on other printed sheets.

   Native files also allow you to get other useful information from each file. For example, a native Word file will sometimes tell you who the author of a document was or information about the revision history. You might also be able find when the file was modified, created, last accessed, last printed, and how many revisions were in each file. This is typically referred to as the “metadata.” The metadata in native email files can be extremely useful. You can find out who was BCC’ed on the email, which folder the email was kept in, and the email addresses of those who received it. Often, on printed emails, the recipients appear as just names if the recipient is saved in the sender’s address book.

   The next format is TIFF or PDF scanned images. Tiff files are scanned images that are typically one image per file (a single page TIFF). Multi-page TIFFs exist (one file with multiple pages), but can be more difficult to work with, depending on the program you are using for review. On the other hand, PDFs are typically one file with multiple pages. Images are convenient because all of the documents can be reviewed in a single platform and pages can be Bates numbered. Many programs allow native files to be converted to scanned images with most of the metadata retained and saved in a separate file called a “load file” that is used to import the documents into a database that allows the user to scroll through scanned images and review a table of the metadata for each file.

   The least useful format is paper. The larger your case, the more paper is inconvenient. If you want to filter your discovery documents to show only emails received between two dates and between two people, you can’t do that with paper.

2. Be aware of where data might be stored, BYOD policies, former employees. One of the inherent problems with e-discovery is that, because it is so easy to create electronic files, they are also easy to duplicate and it is also easy to forget where all of the files are stored. For example, if an employee uses a personal cell phone or a home computer to view work emails, those devices might contain discoverable information. If your client archives data onto backup drives, those drives need to also be checked. It gets more complicated with BYOD policies and former employees. BYOD stands for “Bring Your Own Device” and is becoming more popular these days in businesses. An employee might bring his or her own laptop to work, or might telecommute and work from home on a personal computer. Employees might also be using personal cell phones to do business functions, such as access work files remotely or business emails. As stated above, if a device has access to electronic files, it might become discoverable. Sometimes, things like email attachments are stored in temporary storage on your computer when you simply open the file from home or from your computer without saving it. So, employees might have copies of work documents on their devices and not know about it. So, what happens when an employee leaves the company and the company is then ordered to turn over all responsive documents and some of them are on employees’ personal devices? What happens when that employee who was working on the project in question left on bad terms? Companies should always have strict BYOD policies that outline protocols for what information can be saved or accessed on non-company devices and what needs to happen when employees leave the company.
3. Have a plan for reviewing the documents. Your plan is going to be different depending on the size of your production and whether it contains natives or Tiffs/PDFs. Storing the documents in a database is convenient because it allows each document to be reviewed alongside its metadata, and annotated or tagged with categories to further organize the data. For example, if you have 50,000 documents, you can review them and create a tag for “malice, oppression, or fraud” to tag each document that would allow you to seek punitive damages. Then, you could run a filter to give you just those documents, which you then use as exhibits to amend your Complaint to allege punitive damages. Likewise, you can create tags for any number of issues in your case to help you wade through the haystack to find the needles.

   Putting the documents online allows you to collaborate with other law firms on larger cases so that everyone has access to the documents that have already been reviewed and so that no one is duplicating efforts. Most vendors will charge a fee for storing the data on their servers and a fee for licensing the database software used to view and organize the data. The bulk of the fee is likely going to come from the storage of the data.

   If you have a small enough production set and if it is just scanned images, you can try to review it in house. Adobe Acrobat allows users to create searchable word indexes of large numbers of PDFs for quick word searches. For example, if you have 5,000 PDFs and they are located in several subfolders in your computer, you can create an index that will search all of those files for common search terms. It is a little more clunky to organize such data without specialized database software, but if you have a small data set and a limited number of issues, you can simply create a list of bates numbers of documents that fall under each category.

   Typically, in e-discovery cases, the vast majority of the expenses come from the review process. So, while it might sound cheaper on the front end to save money by passing on the database review software, it might cost you more money in the long run and you might not be able to find and organize all of the files you need for depositions or trial.

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