Well we now in the final phases. You’ve identified, preserved, and collected all information relevant to the triggering event. You’ve winnowed it down to a potpourri of email, Office files, rich media, and highly complex things like CAD files . Now you’re in the final stretch, getting that Electronically Stored Information (ESI) that both sides in the lawsuit agree is relevant and must be handed over. If you’re lucky, both sides have agreed to have a settlement conference where the matter can end there. If you’re not lucky, you proceed with the two final steps.
How do you complete these last two steps, Production and Presentation? What unexpected hazards should you watch out for so you can be confident that you’ve done everything legally required and can step aside, letting the prosecuting and defense lawyers take over from here?
Here is where opposing attorneys “meet and confer,” agreeing (among other things) on the format that the relevant material will be produced for presentation, how to preserve or select metadata, and redaction rules. Production of ESI is not as simple as you might think, for two reasons – one that is just emerging, and one that is obvious. Let’s take the obvious one first: Format. And to keep things simpler than they are becoming, lets restrict this discussion to email, Office documents, and complex design files. You may not be so lucky to be able to exclude social and rich media. Rich media can be everything from recorded voicemail to video. Social media means everything from Text messages to blog entries, and often is produced collaboratively.
For simplicity’s sake, the EDRM standard presents four options:
- Paper (gasp!)
- Quasi-Native and
Essentially these options range from the easiest to produce to the easiest to use. Printing to paper may seem both archaic and easy. Paper is fragile but stable and usually easy to produce. However, volume can be an issue (think time and money), and paper is not easy to search with anything but eyeballs. Still, paper is easy to understand and often a favorite. However, if the information is not in your country’s most common format –- 8 and 1/2 inches in the U.S.—you will have to decide whether to tile information (hard to use) or find and pay for services to print non-standard sizes like architectural drawings. And if your firm is international, you’ll have to deal with several dimensions of paper. And of course if Computer-Aided-Design or other multi-layer artifacts are in the mix, “printing” the CAD file just got immeasurably harder. Tiling or printing on large format paper can make it hard to correlate the layers. And always remember: If the files can have attachments or links to other files, those other things are also in the collection you must produce.
Quasi-paper refers to a high-fidelity digital format that looks like the paper original but can offer the advantage of speedy production and full-text (or simple string) searching. The two most common forms of quasi-paper are TIFF for images, and Adobe PDF. TIFF can be slightly higher fidelity than PDF but does not allow for text searching. And TIFF –even when compressed—can be very large. Yet once again, problems arise that are similar to those of paper.
Even more easy to produce, and possibly easier to use, is “Quasi-Native” digitization. Quasi-native formats are often exports from databases to flat files, ASCII, CSV or similar formats. They have the advantage of not requiring the opposing attorney to scrounge up the application to match your particular database or other complex information. Yet clearly the export formats, while searchable, do not capture much structure and can be quite hard to use.
Lastly, the easiest format to produce and use, with limitations, is native format. This simply means the format –whatever it is—that applications containing the information normally use to create, edit and store the files. This is the most useful format of all, and may require the opposing side to acquire applications (of certain versions) that they do not have. Additionally, native formats may be impossible to redact or to select and extract “pages” from the native files for the case.
What else could go wrong? After all, you’ve covered the formats and earlier you secured those files. The biggest issues could be where those files are located. If inside a content management system, access controls could slow down the process. If inside an email backup file, they could be very difficult to selectively find and manage. Those examples are inside your firewall. Suppose, like many firms you’ve begun storing your files or using applications in a public or multi-tenant web cloud. Who cares? It’s the same data, right? Yes, but where is the cloud, are there many clouds, and what agreements with the cloud service providers do you have for eDiscovery?
If your firm is located in only one country, the job gets easier but can still be difficult. Let’s take the example of your cloud service being only in the U.S. There are many privacy laws that could be barriers to complete production. These could affect both you and your cloud provider. Examples include the Health Insurance Portability and Protection Act (HIPPA), the Gramm-Leach-Biley Act (GLBA) also known as the Financial Services Modernization Act. And if your information is kept internationally (or if your cloud vendors are), each country has its own privacy law counterparts, most different from the others.
Finally, there is presentation, where the rubber meets the road. The definition provided by EDRM.NET is “Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience.” EDRM.NET decomposes this final stage as a series of processes, from start to finish: “Develop Presentation Strategy / Plan, Select Exhibits / Format, Prepare and Test Exhibits, Present Exhibits, and finally Store / Maintain Exhibits.”
You can think of this as the lifecycle of a CSI show, running from the initial script and production planning through the actual courtroom drama. And since the presentation materials may be needed in an appeal, or at least must be treated as an official record, you must keep and maintain them in ways that meet recordkeeping and legal requirements.
No wonder some defendants simply throw in the towel and agree to pay at the very beginning.
The final two steps in the EDRM model depend on the quality and quantity of ESI collected in the earlier steps. There are many dimensions of risk, some of which are legal, organizational, and IT subject matter experts. Responding to an eDiscovery mandate requires many disparate resources and skill sets. The proverbial proactive ounce of prevention applies here. Having an ongoing, documented, and understood information management process at the beginning is key. Part of that plan, an up-to-date file plan, is also required. Do these proactively and you’ve invested an ounce that can become worth a pound of after-the-fact cure.