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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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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Is the phrase, a government “of the people, by the people, for the people” in the constitution? Popular belief is yes, but it is not actually in the constitution. Rather, this phrase comes from President Abraham Lincoln’s Gettysburg address. It is probably a concept that should have been incorporated into the constitution and certainly Lincoln included it to remind citizens that it is their country. I think politicians, and even some of us, forget that it is OUR government and the politicians are OUR employees; they are supposed to be working in OUR best interests.

Business interests are fond of complaining about the jury system and regularly claim that it is “broken”, it needs to be “fixed”. Perhaps the best word is, in fact, “fixed”; they would like to fix the civil justice system so that it can be better influenced in their direction. Should we hold it against them because they work to achieve an unfair playing field? We should not hate Big Corporations for this, but should we allow them to achieve it? Absolutely not!

I think the jury system our founding fathers borrowed from English common law works just fine in protecting the rights of individual citizens. Frankly, I want six of my fellow citizens sitting and listening to evidence in my case. I want six regular people considering what makes sense and what does not make sense. I do not want a special panel appointed to hear my case, as has been promoted by many business “political parrots”. I do not want the government inserting itself into the civil justice system anymore than they already do. I trust an impartial panel of my fellow citizens to fairly weigh the evidence and reach a decision that makes sense.

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News of the bridge collapse in Minneapolis and the mine failures in Utah are just the most recent reminders that issues of safety and accountability affect us all. Corporations with a profit motive have often and consistently acted like those profits were more important than the lives of the people we love. This has played itself out in an ominous fashion over the past 10 years as we’ve seen a coordinated effort by corporate interests to limit, or in some cases eliminate, your individual right to a jury trial. During that time those same corporations have made no effort to limit their own access to the courts.

Recently we’ve also seen the case of Melenna Del Valle who was killed in the interstate 90 tunnel collapse in Boston. In that matter the National Transportation Safety Board has just reported that the failure related to the design and materials utilized in the construction. The finding has brought forth a criminal indictment of at least one firm involved in the project. Unfortunately the criminal statute provides for only a $1,000 dollar penalty. I think most would agree that this is insufficient to inspire accountability or a change of heart on the part of a major corporation.

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It has been done in Mississippi, Florida, and in New Brunswick, Canada. Governmental bodies have finally realized that if they have a cause of action, involving complex litigation, why pay exorbitant hourly fees? Instead, why not hire plaintiff oriented firms who are skilled in working under contingent fee arrangements? Why not let the law firms undertake the risk of the loss of fees and, in some cases, the costs as well?

As Attorney David Lowe points out in a recent blog posting, the only people apparently squawking about this favorable approach to complex litigation for governments is the defense bar. Oh, and President Bush apparently thinks it is a bad idea; since he issued an executive order in May that bans governmental agencies from hiring private lawyers on a contingency fee basis.

Let’s be fair and try to analyze motivations in an objective light.

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Every time voters are asked to consider a referendum that limits citizens’ constitutional rights to seek justice from wrongdoers, the same catchy phrase echoes the airwaves: “Stop frivolous lawsuits!”

Well, who wouldn’t buy that? “Frivolous” has little weight or importance, has no sound basis, lacks seriousness. Paris Hilton is frivolous. But how can someone whose family has been obliterated in a fiery crash caused by a drunk driver, or whose loved one has been maimed by a surgeon’s scalpel, be called frivolous?

The point, claim so-called tort reform advocates, is that too many frivolous lawsuits are clogging the court system. Worse, frivolous jurors – apparently unaware of the unserious and insubstantial nature of death and injury – are handing out billions of dollars to undeserving plaintiffs.

Au contraire. It just isn’t so.

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When a Denver, Colorado jury convicted former Qwest CEO Joe Nacchio on 19 counts of securities fraud, prosecutor Colleen Conry did not mince words: “If you don’t tell, you can’t sell.”

It’s about time.

The American public’s eyes glaze over as the evening news reports yet another multi-billion dollar scam where a corporate CEO, wallowing in the most lavish perks, is charged with hoodwinking investors. The Rogues Gallery is impressive: Tyco tycoon L. Dennis Kozlowski, Cendant Chair Walter Forbes, WorldCom Bernard Ebbers, and, of course, Enron’s Ken Lay. (We can throw in Martha Stewart’s troubles over ImClone stock, just to demonstrate that securities fraud is an equal opportunity activity.)

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