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The case involves miles of backup tapes and hard drive after hard drive of electronic data. And the requesting attorneys have got to deal with it. After the preservation letters and discovery requests have been written, the stipulations signed and the storage media copied and safeguarded, boxes of the stuff arrive. Now what? What follows are some considerations for making the most of the electronic discovery that is becoming more prevalent in litigation. Working with paper evidentiary documents in digitized form is nothing new. Anyone who has used a litigation database has undoubtedly opened up a document that is in TIFF (Tagged Image File Format) or PDF (Portable Document Format) form; these files were created by scanning a paper document and saving a picture of the document to one of these file formats. This discussion of electronic discovery does not cover these files, but native electronic files. The native file format of a document is the format in which it originated. For example, if someone requested a Word document in its native file format, he or she would receive a file (on CD, floppy disk or otherwise) with a “.doc” extension. Other common examples of native file format extensions include .pst (a Microsoft file format for e-mail from MS Outlook), .nsf (the IBM file format for e-mail from Lotus Notes) and .xls (a Microsoft file format for spreadsheets residing in Excel). The party requesting electronic discovery will want to receive it in its native file format. There are numerous reasons why the native file is preferable over a hard-copy printout, TIFF or PDF of a document, the most obvious one being the valuable metadata associated with it. Metadata provide information about, or documentation of, other data managed within an application or environment; it’s data that further describe other data. Common examples of metadata include e-mail headers and routing information, formulas in Excel spreadsheets and editing history in word processing profiles. Metadata in e-mail are particularly helpful in establishing timelines. They can include the date the e-mail was sent, received, opened, forwarded and replied to, and whether it was blind CC’d to someone. Metadata in Word documents is especially telling in breach-of-contract cases or any type of case in which it is important to ascertain the intent of the parties or whether an agreement has changed over the course of time. The “Statistics” dialog in Word allows a user to see a wealth of information, including the author of the document, number of revisions, when it was last saved, when it was printed and so on. Capturing metadata that reflect drafts, edits and collaboration is the functional equivalent of capturing every marked-up copy of paper drafts of a paper document. Such drafts may have been relegated to a shredder if they existed exclusively as paper. This information is another example of metadata that can be extremely valuable in discovery. There’s a last and quite compelling reason to seek e-discovery in its native file format: money. Law firms can rack up tens of thousands of dollars (and more) converting native file formats to PDF or TIFF files for the purpose of indexing and viewing. This is an unnecessary step if a firm works with a storage and retrieval system that can index and search most common native files. CHOOSING A SEARCH SYSTEM To search and organize electronic evidence, a law firm will need to get it loaded into a litigation support vehicle; this could be a software application residing on a notebook or desktop PC, a Web-based system hosted on a third-party provider’s server or a Web-based system hosted from the firm’s Web server. These solutions are all based on a fielded database model in which each piece of electronic evidence is assigned a record with a number of fields. These fields generally will include some objective data such as date and author, and might include some subjective information, such as issues germane to the case. The more sophisticated programs on the market allow users to search electronic evidence concurrently with other pieces of evidence-digitized paper documents, deposition transcripts, etc. When a search is conducted, the content of the fields, as well as the full text of the native electronic file (.doc or .xls) or e-mail, are all searched. There are benefits to each application. The local system, generally available as licensed software, has more features than the browser-based systems, permitting more intricate manipulations of case information; these applications may also be bundled with a transcript manager, interactive real-time features and some trial-presentation tools. To review data with an application that’s loaded on a local machine, attorneys will generally have to have the e-discovery residing on the hard drive of the machine or the firm’s local network. With the third-party provider (or Application Service Provider) model, users lease the hosting service and resident search and retrieval software on a “pay per use” basis. ASPs are ideal for ultra-large cases (say, more than 1 million electronic documents) or when there are multiple parties accessing and annotating the evidence, and there’s sensitivity over who “controls” the evidence. The third option, hosting electronic evidence on the firm’s own Web server, lets attorneys from different firm offices — and outside parties — collaborate on the evidence, but lets the firm maintain greater control of information. In both the ASP and firm-hosted Web server models, users can review and annotate e-discovery any time they have an Internet connection, so long as they have passwords/ permissions to access the case at hand. How the data are loaded will depend on the search and retrieval solution the law firm chooses and on the size of the case. If there is a relatively finite set of documents, attorneys can load the documents themselves by following prompts from their software. When an e-document or e-mail is uploaded, a database record is automatically created with fields for entering information about the evidence. If an e-mail is uploaded and has attachments, some programs also create a database record for each attachment. Users can then add descriptive information and their own notes to these records, which are searchable. They can view e-mail attachments as plain text or in their original format using the program in which they were created as long as it is installed on their system. If a matter has a large volume of e-discovery, or the e-discovery requires special processing, a law firm will probably want to retain a service bureau. Special processing could entail significant de-duplicating of evidence, so that multiple copies of an e-mail or an e-document will only be included in the database once; significant file conversion for redaction purposes; or extensive metadata extraction. A service bureau well versed in e-discovery processing has the resources, both technical and human, to do the job more efficiently and more accurately than a firm’s litigation support staff. When selecting a service bureau, law firm management should make sure that it knows what the service intends to deliver to the firm. As early as possible in the processing phase, management will want to determine what metadata it needs from its e-discovery, what it would like to do with it and the format it wants it delivered in. Metadata may be largely irrelevant in some cases, but in other situations can be nearly as important as the document itself. If a firm overlooks metadata, it could be doing its client a great disservice. If a firm extracts metadata from every document, it will likely incur unnecessary expenses. Many e-discovery consultants find a middle ground by surveying a sample of evidence for responsiveness using forensics techniques, and from that sampling, determining a short list of time periods and/or authors that seem to be of interest. A firm might continue to extract metadata from this more finite set of e-discovery. After a firm or its service bureau has loaded e-discovery into a database, the firm is ready to begin searching, reviewing and analyzing the e-discovery materials. Attorneys can search the full text of electronic discovery, such as electronic documents, e-mail messages and e-mail attachments; coded information in the database summaries, including any captured metadata; and any combination of the above, in conjunction with other case material (e.g., coded information about paper documents, text of paper documents that have been scanned with optical character-recognition technology, deposition transcripts and exhibits). PRODUCING E-DISCOVERY While attorneys seeking e-discovery would prefer to receive it in its native file format, in order to minimize conversion costs and maximize the use of metadata, attorneys in the position of producing e-discovery might wish to resist releasing files in their native format to minimize access to metadata. Assuming that the client company has e-discovery in its native format, its attorneys have the ability to produce it in four formats: native file format; generic electronic format, such as a text file or a file in HTML format; as petrified images delivered in electronic form (such as PDF or TIFF files); and as petrified images delivered in paper form. There is no one format that is appropriate for all occasions. Attorneys should consider the following factors when determining the format or formats to use for production: requirements imposed by statute, rules, regulations and case law; the dictates of any applicable court orders; approaches mandated by governmental organizations such as the Justice Department and the Federal Trade Commission; opposing counsel’s production request or preferences; the ways in which the producing attorneys intend to use the e-discovery during the course of the litigation; redaction requirements; usability of e-discovery produced in the various formats; costs associated with producing e-discovery in the various formats; and agreement of the parties. If there is a finite amount of e-discovery requested and no file format stipulated, attorneys might do well to produce it in TIFF, PDF or paper format, especially if it is felt that metadata contained in e-mails and/or documents are telling. Some programs provide tools for quickly converting native files to petrified images. If the production request is extensive, however, attorneys will wish to weigh the cost of wholesale conversion vis � vis the quantity of sensitive information. Many times, it might be more sensible to cull through data for sensitive information, isolate and petrify those files, and produce the remainder in the native file format, on the assumption that revelations of remaining metadata are worth less than the expense of file conversion. Likewise, if attorneys wish to redact data in a given file, they must petrify it, as trying to redact data within native files can damage the integrity of the evidence.

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