We come to the end of another year and we have fought many battles during it. We have brought justice to many of our clients and many of our clients we have helped to get through the year. The fight for our clients continues and we welcome it.

To all of our clients, in the past and the present, we extend this hope that your holiday season is as wonderful for you and your family as it can possibly be and that you are able to enjoy a new year filled with anticipation and fulfillment.

This is the time of year to make time to do the things we don’t during the rest of the year. Embrace your family; call friends you have not recently spoken with; express those feelings of love and appreciation that you have been keeping to yourself; and be kind, to others, of course, but give yourself permission to be kind to you as well.

As a way of celebrating this year, one of our employees put together a couple of videos we would like to share with you. These will let you know that even we lawyers have a sense of humor. The future fate of the employee producing the videos is, well…still being debated.

For the tenth year, at 8:30 in the morning on Sunday, December 16, 2012, Jack Hairston III, affectionately known as “Jack the Bike Man”, opened the large overhead door of his warehouse to welcome a large crowd of families. They had all been gathered there before sunrise for a chance to receive one of 1000 new or refurbished children’s bicycles. Jack’s bicycle charity for kids has given the gift of “freedom”, which only a bike can give to so many needy children in our community.

As we gathered to help Jack distribute his bikes, those new to this tradition tried to make sense of the chaos of people gathered outside Jack’s nondescript warehouse in West Palm Beach. Families and their young children dutifully formed a line and received a numbered ticket which they could redeem for a bicycle; indeed, some families received as many as six tickets!  The parents or older siblings clutch these tickets in their hands, some for a couple of hours, until they reached the front of the line. There, they were met by volunteers who fitted the children with bicycle helmets, mandatory for children in Florida. Once fitted, they proceeded to the next line, where they were greeted by Santa and had their pictures taken. After that, additional volunteers ushered them through finding just the right bike. This process was at times difficult. In fact, at times it was nothing more than controlled chaos as volunteers handed small bikes over the heads of families anxiously awaiting this moment. Finally, the moment of truth, as a glowing smile appeared on the face of a young boy or girl as they sat on their new bicycle. On this day, Jack and his volunteers would experience at least 750 of these magical moments, one for each bike given away.

As we collected our thoughts at the end of the day, we all experienced the true meaning of giving – making a direct impact on our community for those less fortunate. In a world in which we know all too well that tragedy and sadness can strike without warning, Jack took the sadness away and gave us all a new view on what is really important.

Next in our Electronically Stored Information (ESI) series I had planned to discuss the collection, review and culling of ESI.

I changed my mind after reading a few articles and recently decided cases that discussed some crazy myths and fables about ESI and e-discovery.

Let’s talk about myths, legends and folklore in the world of ESI.

Magic, Myth and Legend

Portable Document Format (PDF) documents are always “full text searchable”:

Wrong. What makes PDF documents searchable is optical character recognition (OCR), which is simply a program that reads machine language and interprets it as text so a search for “dog” can be found by the program examining the document. You can create a PDF document (or series of documents) that are NOT full text searchable and determining the full text search-ability is not always as obvious as one may think. To have search-ability, you must have the OCR data.

Tagged Image File Format (TIFF) documents are always “full text searchable”:

Wrong. TIFF is a “picture” of the document. See answer above concerning OCR.

Paper Documents are the same, but just a copy of the electronic file:

Wrong. First, the sheer magnitude of ESI significantly outweighs paper documents. The different types of ESI vary greatly. A picture of a dog printed on a piece of paper has little difference than text on a piece of paper – it is a paper document. In the ESI world, though, the picture of the dog may be a: gif, jpeg, bmp, RAW, PNG, TIFF, PDF, RGBE, CGM, or another of over 25 different formats. A text paper document as an ESI file might be: Word, WordPerfect, Word Pad, OpenOffice, Notepad, WordStar, TextEdit, or over 75 additional text editors.

Now add to this equation “metadata”; or what is referred to in ESI as “data about data”.

Also consider “portability” in the distinction of paper vs. electronic. A single gigabyte of information you could carry around on a flash drive might equate to over 150,000 pieces of paper and take up over 30 cubic feet of space; about 200 pounds of paper. If a party anticipates producing a terabyte of ESI, that’s 150,000,000 pieces of paper and 30,000 cubic feet of space.

When asking for the production of ESI, you should always ask for and get “metadata”:

Wrong.  First, you should know what metadata really is as it relates to given formats of documents. The extent, amount and type of metadata you can recover from program produced documents varies greatly from format to format. A quick answer to what metadata is: “data about data”. An answer that is absolutely accurate and could not be more useless.

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I am without understanding for the events that occurred in Newton, Connecticut or how the needless slaughter of 20 innocent children and (6) educators could happen.

Our thoughts, our sympathies and our sorrow go out to the parents and family of those murdered by Adam Lanza. Although we have some understanding of the loss suffered by those who lose loved ones, it is not typically in the horrific ways in which these survivors lost loved ones at Sandy Hook Elementary School in nearly the blink of an eye.

My wife has been a lifelong educator and is currently a principal of an elementary school herself. She knows each one of her students, she cares about each one of her students, and would do anything to protect them from harm. I am sure that was exactly the sort of emotion going through the minds of the principal, the young 29 year old intern, the special education assistant who tried to shield her students, the school psychologist, the first grade teacher who saved 15 or 16 of her children, and the aspiring substitute teacher; all needlessly killed.

How do we explain a man who comes to a school filled with innocent children with “hundreds of rounds of deadly ammunition” for his rifle and “two semiautomatic pistols, with multiple high capacity clips”? How do we explain to school children and those who try to educate them that they are at this sort of risk and that “code reds” are a reality in a civilization that by this time should be much more evolved?

As the people in the community of Newton, Connecticut work through the shock and the loss, we hope they will ultimately find relief for their losses and comfort for their grief.

Did you get up this morning have breakfast and a few glasses of wine or cocktails before getting in your car to drive to work?

If you found yourself texting while you were making that trip to work, answering emails or maybe even talking on your cell phone, you might just as well have had the cocktails. Your level of performance impairment behind the wheel when you are texting is as bad, maybe worse, than driving a car drunk!

Hundreds of thousands of people are injured and killed every year as a result of distracted (impaired) driving. Sadly the loss of lives is preventable if we simply stop operating a ton of steel at 70 miles per hour while we are not really paying attention.

Believe me and the many researchers who have studied it: you are not a multi-tasker, a super-tasker, or anything but a single tasker. Your brain simply does not process in a way that accommodates doing more than one thing at a time.

There is help for everyone who feels the need to get a response to those people texting us, even when we are driving. It’s an app called “Free Safe Text” and there are some advantages to it over some of the other apps out there.

First, Free Safe Text does generate an immediate response to those texting you and it can be customized to your specific situation: “I can not respond to your text because I am driving at 70 mph.”, “I am in the movies. Will respond to your text soon.”

There is another benefit. The more you use Free Safe Text, the more you build up reward points that can be used toward money rewards or merchandise.

So, give everyone who loves you a holiday present this year and don’t drive distracted – try Free Safe Text!

As we have previously discussed, the Federal Rules of Civil Procedure provide specific rules for the handling and discovery of electronically stored information (ESI). In Florida, the Rules of Civil Procedure were recently amended to include at least some guidance relating to ESI and e-discovery. Those amendments impacted different rules: Rule 1.200 (Pretrial Procedure), Rule 1.201 (Complex Litigation), Rule 1.280 (Specifically allows ESI), Rule 1.340 (Interrogatories), 1.50 (Production of Documents and Things), Rule 1.380 (Spoliation Safe Harbor as a Result of Business Practice), and Rule 1.410 (Subpoena of ESI).

Law books

The new Florida rules attempt to bring court rules up to date by adding rules intended to control the discovery of electronically stored information (ESI). These new provisions provide far fewer tools for judges and parties than are included in the federal rules. The Florida Rules are more of an “opt in” event than the Federal Rules. For example, the Florida rules provide no procedure requiring a “meet & greet” conference as set forth in Federal Rule 26(f). In fact, the Florida rules from a practical perspective do not require the parties to discuss any ESI or e-discovery pretrial practice unless one of the parties moves to declare the case “complex” as defined under Florida Rule 1.201. Rule 1.200, Pretrial Practice, in the committee notes it is set forth as:

“The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and the production of electronically stored information.”

If a party moves to declare the case as “complex litigation”, under Rule 1.201, the court is not compelled to hold a case management conference for 60 days and the parties are instructed to confer 20 days before the case management conference regarding issues, including:

“Rule 1.201(b)(1)(J): the possibility of obtaining agreements among the parties regarding the extent to which electronically stored information should be preserved, the form in which such information should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources.”

The danger is an inference in the rule that the extent of preservation of ESI is not necessary to consider until the pretrial or case management conference. In fact, Rule 1.200 further reinforces this by setting forth that one of the things the court may want to discuss with the parties is “the possibility of agreements from parties regarding the extent to which such evidence (ESI) should be preserved…”

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We have now written about the general environment of e-discovery and some of the rules surrounding e-discovery and electronically stored information (ESI). Now, let’s talk a little about document/data location (search) and collection.

First, know that collecting (search) document and data evidence has completely different perspectives depending on whether you are the producing or requesting party. Producing parties want to limit their time and expense to the smallest possible number. They want to produce only the very bare minimum required by the law. Requesting parties want their cake, they want to eat it and they want to take all the left overs home with them.

In the beginning of ESI discovery, targeted collections were done. This is a process where records custodians would locate the “relevant” documents and produce them to counsel, who would then produce them to the receiving party. A number of obvious problems with this method. First, the human custodians may well have reasons for not wanting to produce certain records or to destroy records. This type of collection can lead to data destruction. When a record is accessed on a computer, it changes its metadata and spoils valuable evidence.

Typically the alternative response to collection of documents and data that the requesting party wants is to tell them that a “keyword” search will be done of the responding party’s “computers”. So, opposing party, give me a list of keywords you want me to search across. There are a few problems with this approach:

• The scope of the search is uncertain. What computers will be searched? Will servers, laptops and other devices be searched? Will other locations be searched?
• The requesting party is unlikely to understand enough about the responding party’s data to construct a meaningful set of keywords.
• Keyword searches without using keyword plus (see below) misses misspellings, abbreviations and code words.
• Specific custodians. What custodians are key custodians? Who decides key custodians?
• How documents and data are stored and where they are stored.
• What measures will be taken to preserve data when doing the search process?
• It does not address the possible limitations of the search software employed to look at the documents.
• It suggests a mythical “all connected”, cohesive and fully integrated computer system that can be magically searched from beginning to end. A construct that does not exist in the real world.

There is a myth out there that is called “the myth of the enterprise search”, as described by Craig Ball, a noted e-discovery expert and lawyer:

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When might a legal case involve extensive discovery, including electronic discovery (e-discovery)?

Suppose you sue a corporation and want to obtain documents/data (Request to Produce), information from the corporation itself (Interrogatories) and information from employees of the corporation (depositions). What might the subject matter of the lawsuit involve:

• Breach of contract or agreement
• Trademark or patent infringement
• Shareholder derivative action
• Product defect
• Defective drugs

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A lawsuit is filed…and that is often when the real work begins for all the parties involved.

In some cases, neither the plaintiff nor the defendant has all the proof; documents, data and other types of evidence; they need to fully prove their respective cases. So, each party is allowed to ask questions and request documents (data) from each other.

This is a journey called “discovery”. Once it involved going to filing cabinets and boxing up sometimes hundreds of boxes of paper. In our digital world, the discovery process can be a frightening experience for those unprepared and an experience fraught with error for those not sufficiently informed.

Let’s take a look at what is faced in the digital discovery world today.

Many in the United States are convinced that we manage more email than anywhere else and that is simply untrue. We only represent around 14% of the world’s total email volume; with Asia and Europe beating us by two and three times our volume.

Last year the average number of business emails received and sent daily by a single worker averaged 105. If you are involved in a lawsuit with a company in which a single department has   25 workers, you may be dealing with as many as 958,125 email documents generated in a single year. If (3) of the company’s departments have relevant documents and data, you are now   trying to sift through nearly two million emails or an average of 3 million pages (not including attachments).

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