E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

For a full understanding of the Great TIFF v. Native Debate and the dangers of choosing the wrong side, try this. Picture a bunny.

Why not? Spring is near, and Easter is only a month away. So, picture a bunny. You can cuddle it, watch its little nose twitch, listen to its heartbeat, even observe its behavior and follow it home. If you are one of those lucky creatures who speak bunny -- like computer programmers speak source code -- you can politely inquire where it's been, what it's seen and who it has spoken with.

Electronically-stored information (ESI) such as e-mails and spreadsheets, is like that living bunny. It exists in pure native form, possessing an exotic birthday suit from which can be gathered the hidden details known as metadata -- who authored the data, who sent and received it, the underlying formulas behind the numbers in an Excel spreadsheet, where files or e-mails were stored, who read or possessed them, when they were created, accessed, modified and saved. Such ESI produced by a party is fully searchable. Like the bunny, it can talk to your opponent, and tell them things.

But herein lies the nasty little secret: attorneys and their clients do not want the bunny to talk to their opponents. In fact, they would love to produce ESI in such a way that their opponents cannot communicate with the bunny. But in most cases, their opponents' requests for production specifically ask them to turn over the bunny. So what can they do?

Picture that bunny, dead. Whacked. A poor dead bunny, handed over to the other side. No pulse. No heartbeat. You can't follow a dead bunny home. You can't talk to it, and it certainly can't talk back. That dead bunny is a TIFF, or "Tagged Image File Format," like a PDF. When the bunny is snuffed and the electronic data "TIFFed" -- i.e., printed out in hard copy and then re-scanned -- it becomes dead and frozen, rather than dynamic and searchable. What you see is what you get. The hidden information, the ability to search millions of pages of text for smoking gun language, and to peek at its living history, is lost. And your opponent has no way to recreate it. There is no way for him to resuscitate that bunny. Sure, he can take a DNA test of the dead bunny: convert the tiny elements of TIFF images -- the individual letters, like the Ts, As, Gs and Cs of a double helix -- into searchable text format through optical character recognition ("OCR"). But OCR does not solve the main problem: identification of the lifeblood, the living metadata of the bunny's life history (the who, what, where, when and why) that does not appear in the TIFFs.

Still, what's wrong with this? Why not always produce ESI in TIFF rather than native metadata form? Why not always produce a dead bunny? Isn't this a perfect solution? Unfortunately, no -- as one law firm, two lawyers, and their very unhappy client just learned in Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., No. 6:07-cv-222-Orl-35 KRS (M.D. Fla. Mar. 4, 2009). In short, Lexington wanted a live bunny and requested all ESI in native format without any alteration or deletion of metadata. Its opponent Bray & Gillespie (B&G) produced a very dead bunny, and was called out by the court for doing so. And that was before B&G's counsel began lying about who killed the bunny and when.

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Over the past several years e-discovery has blossomed into a multi-million dollar industry. Businesses and the legal community alike have struggled to keep up with evolving court rules on e-discovery and their interpretation. When it involves the technical arena, we are often reactive rather than proactive on finding the right tools for the right job. As a result, we fall prey to system vendors' promises of superior products that can solve all our discovery problems.

In this economic climate, most businesses are probably moving cautiously when it comes to securing licenses or system purchases. More than ever, we are doing more window shopping than buying. But when we decide to buy, mistakes can be made due to the following reasons.

• Poor needs assessment. While technologies can do wonders, it is how they are applied that matters. The mantra is implement the appropriate technology with some leeway for expansion. Because all technologies have shelf lives (the length of time given before they are considered obsolete or unsuitable for use), it presents a business risk to put all the eggs in one basket. Before purchasing any particular products, assess the vendor's business strength by checking its market share, user feedbacks/reviews, ease of implementation, and portability (data being integrated or migrated to another platform). It is also important to examine the interdependency among its business partners to assess its long-term viability should one or more of its business partners fail. In addition, it is crucial that the product fits into the internal technology infrastructure and does not create an impediment to workflow issues.
• Lack of collaboration. Not only that it is to the advantage of all parties involved in litigation to examine what information is needed and the in-house systems that are readily available to facilitate the retrieval process, FRCP Rule 37(f) demands it. If a third party vendor is needed, both sides might want to work with the same vendor to negotiate discounted services. This in turn creates an added incentive for both sides to make extra efforts to ascertain the type and volume of information that is most relevant for successful litigation and results in potential cost savings for the clients.

While there is no magic bullet against e-discovery, following the ground rules listed above can make the discovery process more productive and less painful.

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Interesting Slate article about some of the nuts and bolts behind retention of text messages. . . how long they are stored on your phone, how long your wireless carrier will store them, and how your corporate record retention policies might affect those issues (as Detroit Mayor Kwame Kilpatrick recently learned the hard way).

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Rule 34 allows the option of discovery in "native" file formats, which can provide a litigant with much more detailed information than a TIFF (tagged image file format) file.  However, TIFF files are much easier to manage, and the storage and management of native file formats can be costly and cumbersome.  A recent ABA Journal article suggests that offering to provide a sample (or requesting a sample) of digital archives in their native format early on in the discovery phase can save parties significant time and money.  Parties (or the court) can then determine whether or not the evidence contained in the native format is relevant.  If it is not relevant, both parties are spared the expenses associated with the storage, review and management of the native files.  If the evidence is relevant, parties can proceed knowing that their resources are being utilized efficiently. 

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I recently handled a case where opposing counsel repeatedly emailed to me photographs purportedly evidencing her client's factual assertions.  Naturally, my clients and I had troubling questions regarding, among other things, (1) whether all of the photographs were taken on the same date at roughly the same time, (2) the source of the photographs, and (3) whether the photographs had been altered.  In the future, there may be a way to obtain that information from the photographs themselves, although, unfortunately, that information may have limited reliability.

A blog called "Out of the Box Lawyering" has a very interesting and useful recent post about a Microsoft program called Photo Info that potentially enables you to obtain from the digital version of a photograph data such as:

• the time and date the photograph was taken;
• the model of the camera with which the photograph was taken;
• technical information that could bear on whether the photograph was altered;
• other information relating to the "author" of the photo.

Although this tool has interesting ediscovery implications, the fact that the program itself allows people to change or augment that very metadata likely limits the evidentiary value of that metadata. 

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In the web world, we are all familiar with various search engines that are indispensable in locating information. However, these same search engines could also be potential pitfalls for exposing discoverable content.

Search engines (eg. Google) are essentially "crawlers" that browse and index all the webpages and files that are posted to the Internet, past and present. So what happens if a firm posts information on the web but later wants to block it from public view? Enter Robots.txt.

Simply put, Robots.txt is a text file put on a webserver hosted by a website for the purpose of controlling which pages can be indexed by a "well-behaved" crawler (or robot-- Google's crawler is coincidentally named Googlebot).

However, there are two ways for crawlers to circumvent Robots.txt and subject webpages and files to discovery. For one, since Robots.txt is just a protocol, "not so well-behaved" crawlers can choose to ignore it and still index all the pages and files posted at a website. Second, if website A posts a file and website B has a link to the file, Robots.txt provides no defense because the crawlers would still find the link listed on website B even though website A tries to block the file by removing the link at its own website.

To avoid questionable pages and files to be discovered by accident, it's best not to post them in the first place. In addition, it's advisable for in-house counsel to work with their IT department to review what's on their firm's webservers.

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One area of the electronic discovery process that is particularly time consuming and costly is the transfer of electronically stored information (ESI) to and from applications involved in different phases of the discovery process.  For example, if parties agree to produce electronic information in TIFF format, Excel Spreadsheets, PDFs and Outlook e-mails may be required to be converted to TIFF files.  The conversion to a single format can be extremely costly and time consuming.  In October 2007, the Electronic Discovery Reference Model (EDRM) announced a new Extensible Markup Language (XML) standard for the easy transfer of electronically stored information.

EDRM is an industry group that was created to develop practical standards for the e-discovery industry.  EDRM hopes that as the XML standard is adopted in the industry, the e-discovery process will become more efficient and effective as the movement and storage of electronically stored information becomes more streamlined. For a description of the XML standard, and for more helpful information, see this article from Newstex blog and LexisNexis.  And stay tuned to see if theory becomes reality with the proposed standard. 

 

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Much of the data stored on computers, such as the data stored in random access memory (RAM) and internet caches, is temporary and "ephemeral". Because these temporary, transient files are deleted as often as every few hours, it would seem that there would not be a duty to preserve them.

However, in Columbia Pictures Indus. Inc. v. Bunnell, 2007 U.S. Dist. LEXIS 46364 (C.D. Cal. June 19, 2007) Magistrate Judge Jacqueline Choolijan, following Ninth Circuit precedent, ordered the defendants to preserve data "stored" in RAM.  The court held that the server log data (IP addresses, etc.) stored in RAM was extremely relevant stored information under Rule 34 of the Federal Rules of Civil Procedure.
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