The Defendants [...]]]> Josh Gilliland and his always-entertaining “Bow Tie Law’s Blog” turn this week to the case of In re NetBank, Inc., 2009 U.S. Dist. LEXIS 69031 (N.D. Ga. Aug. 7, 2009), in which the producing party went to great lengths to prove to opposing counsel and the court that they knew absolutely NOTHING about e-Discovery.

The Defendants (the producing party) refused to produce native files, opting instead to produce TIFFs with OCR text (not extracted text, but OCR).  They claimed that:

1.  Native file production would promote alteration of the file contents (what, they never heard of MD5 hashing or maintaining a forensically-defensible authentication file?);

2.  Native file production would prohibit Bates numbering, and possibly software incompabilities (Bates numbering is not an issue if each file is uniquely named, and obtaining the proper software for review is the proponent’s problem, not the producer’s); and

3.  Performing OCR on the TIFFed files was the only way to make them searchable (ignoring, of course, the simple fact that native files are themselves searchable, with much higher accuracy than OCR).

The Court ordered the production of native files, because the Producing Party gave “no good reason why they should not produce…in native format.”  In re NetBank, Inc., 74-75.

Josh does not report whether the judge then snickered at the Defendants in open court. 

I write with a somewhat flip attitude about this, but the simple truth is that ESI production is now part-and-parcel of a litigator’s daily practice.  If attorneys cannot find the time to learn about the basics of e-Discovery, it is well worth the expense for them to retain someone who knows those basics.  It would certainly save them the embarassment that counsel here brought upon themselves.

Don’t take my word for it.  Eric P. Mandel writes to the EDD Update blog about the [...]]]> Yep, my headline for this post is pretty strongly-worded … but it’s also pretty accurate.  The fact is, sanction-happy judges and vague, utopian court rules regarding ESI searches don’t mix, when you’re dealing with mounds of mostly-random electronic data.

Don’t take my word for it.  Eric P. Mandel writes to the EDD Update blog about the “needle in the haystack when you have plenty of haystacks” conundrum.  Technology has not (and perhaps never will) find a perfect solution to finding just the documents you need to produce, and cull out all the documents you need not to produce. 

Just know that (a) you are not alone in your frustration; and (b) for now, keyword searching is still every bit as effective in culling down a production set as other search methodologies.  This means that there is, ultimately, no substitute for working with opposing counsel to craft search queries that all parties can live with (which, if used in good faith, should keep those sanctions away from your door).

If the parties do not focus [...]]]> From the National Law Journal, Sheri Qualters reports on the Delaware Court of Chancery’s recent spate of decisions regarding several aspects of e-discovery practice.  Most significant to me is Beard Research Inc. v. Kates, in which plaintiffs were granted an adverse inference instruction for missing computer evidence.  The key language:

If the parties do not focus on the handling of e-discovery in the early stages of a case, the Court is not likely to be sympathetic when, for example, one party later complains that stringent measures were not instituted voluntarily by her adversary to ensure that no potentially relevant information was lost.

In other words: Hashing e-discovery issues out early-on are critical to the success of a complaint later that the opposing party failed to avoid spoliation of data.  Another worthwhile quote from the same article:

“If you’re counsel for any party, you have to get right on the horn when litigation starts or litigation is contemplated and instruct your client in no uncertain terms that everything needs to be preserved,” [Jim S.] Green [Sr., counsel for plaintiff in Triton Construction Co. Inc. v. Eastern Shore Electrical Services Inc.] said. “I would go so far as if to say, if you have a document retention policy that involves deleting e-mails, prudence would dictate that litigation override that policy.”

However, as the article points out, Judge Peck (in Gross Construction v. [...]]]> From Jason Krause on Law.com comes this article regarding the Text Retrieval Conference Legal Track 2008.  The main points to take from this article are that, properly used, Boolean keyword searching is equally as effective as more “advanced” search technologies such as clustering and concept searching. 

However, as the article points out, Judge Peck (in Gross Construction v. American Manufacturers) ruled that litigation keyword searches must be negotiated with input from the actual custodians of the documents, and that linguists and search consultants may often be necessary for assistance.  In other words, as I’m fond of saying: This ain’t Google.  Creation of a search methodology is critical for success.

Zubulake’s bright-line test [...]]]> There has been a bit of debate (okay, a LOT of debate) over what makes backup tapes truly “inaccessible”.  The California Assembly is on the verge of making that discussion moot.  From Law.com, this article agrees with their proposed new rule of evidence that it’s no longer necessary to consider backup data is presumptively inaccessible:

Zubulake’s bright-line test designating all disaster recovery systems as inaccessible simply does not apply in today’s world. It is likely only a matter of time before federal law reflects these advancements, rendering Zubulake inapplicable. Companies should therefore be wary of assuming that their disaster recovery systems do not have to be preserved and will not need to be produced.