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To manage a discovery production effectively, attorneys must understand not only the computing environment from which they are seeking discoverable material, but their options for preserving, identifying, evaluating, acquiring, validating and producing electronic data as well. The most common problem in electronic data discovery (EDD): Critical information may be missing, because electronic versions of e-mail and files contain more information than appears when the document is printed to paper. This is often caused by conflicts between applications, such as printers and e-mail programs. In the past, underlying electronic metadata or file properties were not perceived as valuable information, because discovery was paper-based. Paralegals set up Bates stamping and coding brigades and went through buckets of photocopying toner, and attorneys managed large cases in “war rooms” crammed with bankers boxes overflowing with documents and Post-it Notes. Paper, paper and more paper. But what many attorneys are now beginning to realize is that all documents are not created equal. While a photocopy of a 20-year-old memo is likely to be an accurate representation of the document as originally created, an e-mail printed to paper may omit critical information. Unlike paper, electronic documents can be easily altered — inadvertantly, or intentionally. Missing or altered data can be caused by ordinary, everyday application conflicts between e-mail programs, word processing and spreadsheet applications and printers. Critical data that can affect the meaning or interpretation of a document — such as the existence of attachments, or underlined or bolded characters, or “emoticons” — can be lost in the translation from cyberspace to papyrus. For example, just using popular e-mail programs (such as Microsoft Outlook or America Online), combined with popular printers, can create enough conflicts to keep any attorney awake at night worrying about the integrity of printed information. At our workplace, we have encountered conflicts in virtually every program we have used, including Eudora, Lotus Notes, Internet Explorer, Word 2000, Excel 2000, Outlook 97/98/2000, PowerPoint and Microsoft Works. You may ask, “If application conflicts are so well known, why not simplify identify them and insure we are not missing any more data in future productions?” The answer: Because manufacturers keep cranking out new printers, which generate new conflicts literally on a daily basis — and developers don’t consider the conflicts critical enough to resolve quickly. Of course, users also create conflicts when they set up settings and preferences. In all fairness, the process of identifying and correcting all application conflicts simply is not feasible. The speed at which technology is evolving — combined with the amount of flexibility users demand in their applications — makes this task nearly impossible. RE-ENGINEERING CONCEPTS So what is the bottom line? To manage a discovery production that includes electronic data we must re-engineer our understanding of what a document is and how we process the document for discovery. Applying the old process to electronic data can be devastating. Jason Derting, president of e-discovery.com in Portland, Ore., says the biggest issue “is to not try and separate the program from the process of consulting.” “You can provide a client with a great EDD software program, but if you do not understand discovery, the data possibilities, data environment and liabilities, the best program in the world will create liabilities for attorneys. Just to say you can convert data to TIFF falls short of providing a qualified service,” he says. It is not sufficient to pull together several applications and call it e-discovery. The key is to have an EDD program that was built specifically for litigation, says Derting. EDD programs should include both manual and automatic screening, he says. For example, a savvy user could create macros and programming commands within an Excel spreadsheet to create hidden columns and text. To find such “hidden” data, attorneys need to use an automatic query that checks every single Excel cell. Finally, the end-user should have significant production options. For example, the ability to perform a cross-reference between application files and attachments within e-mail is critical when de-duplicating data. The use of computers and the speed at which information is created, distributed and accessed can be mind-boggling for even the most technically proficient. When approaching electronic discovery be prepared to gain a good understanding of the technology used within the discoverable environment as well as the technology used in the production process. Tom O’Connor is director of education and training at Pacific Litigation Servies Inc., and a contributing editor to Law Technology News. E-mail: [email protected].

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