An industry analyst’s perspective on the biggest challenges currently existing in the Electronic Discovery space.
“I recently conducted two separate surveys of end users regarding their experience with electronic discovery. The first was with the Chicago Law Bulletin Publishing Company that was sent out to Illinois attorneys. The second was with ILTA and went out to their members, who are primarily large firm IT staff. Both surveys asked approximately 20 questions about the respondents’ level of exposure to eDiscovery matters, experiences with electronic discovery vendors and products.Both also contained a specific question which asked for their thoughts on the most important issues facing them in this ever-increasing area of practice.” 1. Education “In both surveys, ‘education’ ranked in the top 3 of most important issues. The biggest surprise in the Illinois survey were the responses to the question which asked, ‘Are you familiar with the Federal Rules changes regarding electronic discovery?’ 70% answered ‘Yes,’ which means that 30% were not familiar with the rule changes.The latter figure seems somewhat astonishing given the high degree of coverage and the flurry of CLE activity surrounding changes that went into effect in December 2006. In the ILTA survey, 90% of respondents were familiar with the ED-specific changes to the FRCP, but 40% did not know if their state had implemented such a rule change locally.” 2. Vendor Performance
“The findings from the ILTA survey seem to suggest that ED vendors still have a long way to go in satisfying clients on the service part of their deliverable. More than a third of the respondents said they are unhappy with the quality of the performance from those vendors The fact that price as a significant factor in determining project satisfaction had a nearly identical proportion of responses to timeliness and slightly behind project management tells me that reliability and efficiency are the areas where vendors need to concentrate.I think it is most important that a vendor not try and achieve these goals through mere economies of scale, but through development of a deep technical and litigation-savvy knowledge base within its personnel. In the Illinois survey, the attorneys who answered with respect to the litigation support software they purchased from vendors confirmed my own experiences in working with various firms around the country that the vast majority of attorneys are either ambivalent towards, or unhappy with, the software they are employing.In this case, 2/3 of the respondents declined to rate their software of choice at all and of those who did (25% of the respondents admitted that they didn’t actually use it themselves, but left that task to a staff member), 42% found their choice ‘satisfactory’ or ‘ok.’An equal number of respondents (13%) were either very happy or very dissatisfied.” 3. Workflow “With the advent of electronic documents and new document types such as multi-page TIFFs, PDFs, emails, excel spreadsheets and audio files, the page-centric approach of Bates numbered single page TIFFs has faltered. The paradigm that worked for 100 boxes of documents is simply too cumbersome and prohibitively expensive for cases that routinely handle hundreds of gigabytes of electronic information. According to John Turner, Senior Vice President and Chief Technology Officer of Anacomp, Inc. in San Diego, applications ‘…that retain the paradigm of the page and not the document will not be able to adequately support the new age of litigation. A modern platform must be able to review native documents that are not just paper equivalents, but must directly enable review of any file that is in common use in business today.’ Attorneys and their clients who focus on the new paradigm will save time and money by using this process for docu-centric native file review.I believe that we will shortly see technical solutions that will allow a Bates-like substitute to be employed within the native file production paradigm. So what general observations can we take away from these surveys? E-discovery is cutting across all the legal demographics of firm size, case values and attorneys but a significant number of lawyers are still unfamiliar with the requirements and characteristics of electronic discovery. No single vendor is dominating the market and national vendors are clearly splitting the business with local shops. Although well known products such as Summation and Concordance have a high market presence they are being pushed by the rise of Web based applications and, although cost conscious, attorneys are rating both vendors and products on a number of other factors besides price.”
In the E-Discovery trenches with technical and forensic recovery specialist, Jonathan Cross and former litigator and project manager, David Hazouri.
Moderator:Gentlemen, the burgeoning field of electronic discovery certainly continues to garner its fair share of commentary by those who profess specialized knowledge in the area.This brief Q&A is designed to solicit your responses to some of the hot topics from the trenches of litigation.Before we start, let me ask if you have any general comments.
Cross:This industry has too many talking heads and not enough real experience speaking to at least what I consider to be the real and reoccurring issues at hand. Very few of the talking heads have actually conducted forensic investigations, data collections, or have gone through the frustrations of all the complex layers of hands-on production and processing.
Hazouri:Well, I think there are two conversations that have to be considered simultaneously: one concerned with the purely technical side of managing and executing E-Discovery; and the other that seats those technical considerations within the context of the legal issues that are driving the scope of discovery in any given case.In order to be a meaningful co-participant in both conversations, the speaker or consultant has to be fluent in both tech and litigation. Very few can bridge both with real authority and that is exactly what the Cipher Group project team is designed to deliver. Moderator:Alright, on with the questions.
Q.Does Optical Character Recognition technology (“OCR”) automatically render static electronic images such as TIFF sufficient as full and complete electronic discovery of the subject files?
Cross:First of all we need to understand the usefulness of a static image; it is just that, a static image. It has the same functions as a piece of paper, it can be highlighted, redacted, copied and is in essence an electronic version of the paper print-out it represents.It cannot be searched, it has little or no metadata, it is functionless, and apart from being transported via removable media, has no more benefit than paper. The real advantage of static images is in the area of computerized electronic presentation in court or, in all honesty, where a producing party desires to limit or exclude all other functionality of the electronic file being produced. Having understood the static image, how does OCR play a role in making the static image more acceptable as searchable documents? We have to understand how OCR works. OCR means that the scanning software tries to recognize the pixels that go to make up the characters that in turn constitute the document text. Example: Take the letter R, which is made up by a series of dots or pixels. If the pixels or dots as indicated in yellow are lost or not read properly the OCR could read the R as a P.
OCR in general terms is good as a “next best” to a static image. In litigation, however, it can be a nightmare of false expectations. Anyone who has spent the hours I have in doing OCR clean up, to try and understand or properly be able to search across large volumes of electronic document text, knows the limitations of OCR. If all you have is paper, and under an agreed-to discovery request you scan and OCR documents, be aware that the result may be far less helpful than you bargained for. Q.Is the PDF file format the answer to all production as claimed most often by defense counsel? Cross:To understand PDF you need to understand why it was created in the first place. Adobe tried to use a standard format that was safe when sending documents across the internet. Some in the legal industry believe it was made for them, it was not. It was made so corporate could send letters or documents that contained little or no metadata, was not changeable, and could only be opened in the Adobe program. If you are on the defense side of a case PDF is just the format for you. If you are trying to get E-discovery that has the ability to use the metadata to verify or prove authenticity or otherwise retain necessary format functionality, PDF is not for you.
Hazouri:I would like to add that the argument for both TIFF and PDF also usually includes the assertion that these are the only formats that can be tagged electronically with a Bates number for tracking purposes.While we don’t have time to go into it here, I think the need for a pure electronic analogue to the Bates system is an argument that will soon be on the wane as alternative arrangements involving the court or tracking systems incorporating hash values will replace the antiquated paradigm shortly.
Q.Why should plaintiffs be granted native format vs. static images?
Cross:This is an industry debate that depends on which side of the discovery fence you are on. While parties with the bulk of the production obligation (most often defendants) would love to only give you a static image, receiving parties (most often plaintiffs) find them falling very short of true E-discovery. While there is much debate, one of the biggest reasons for native format is to have the functionality that the document was created in. Excel spreadsheets do not do well in static image, but give functionality and allow the recipient to see the data as it was meant to be viewed. PowerPoint files with embedded video or audio do not transfer to static image. While these two examples are self-evident many more programs loose either data or functionality when converted to static image. And let’s not forget the metadata which may be the only way to prove authenticity, originality, and admissibility.
Hazouri:Jonathan’s points are well taken.However, issues of burden that may be visited on the producing party in having to review all aspects of a large number of electronic files, including underlying metadata, prior to production, can militate in favor of producing an initial set of e-files as static, OCR’d images.From there, a smaller sub-set of the same documents designated by the receiving party can be produced in their native format.Of course, I have seen plaintiff’s counsel as the receiving party who do not want to have to disclose what are in effect their “hot docs” by having to designate this sub-set and in some instances I think they will have a good point.