We asked several judges to review [...]]]> Anne Kershaw and Joe Howie write on the Law Technology News website about the results of their survey among eDiscovery providers.  The gist of their article – and it’s a good one – is that failure to deduplicate e-mails across custodians may be at best sloppy, and at worst unethical:

We asked several judges to review this article and all quickly grasped the benefits of deduping across custodians. When asked if deduping practices should be considered when deciding attorneys fees, most indicated it would be appropriate.

Said U.S. Magistrate Judge John Facciola [author of U.S. v. O'Keefe, asserting that most lawyers are not qualified to write effective keyword searches], “Certainly. I already look for … over-lawyering, having too many people doing the same thing, or having overqualified people do what the more junior people should do. … Failing to dedupe is the electronic version of the same problem.”

I’ve stayed out of the dedupe-yay-or-nay argument until now, since LLM’s mission as a service provider is to do what our clients ask of us, not to promote ESI processing options that (let’s be honest) make us money.  However, while I agree that more lawyers should de-dupe across custodians wherever possible (if for no other reason than to cut down their own review costs), I have to disagree with the necessary implication that there’s something inherently unethical about the failure to do so.

What Anne and Joe fail to note is that deduplication is itself a primitive process, especially where e-mail is concerned.  All deduplication is performed by comparing “hash values” - numerical “fingerprints” calculated by examining the file and its wrapper on the storage medium.  The computer calculates the hash value by factoring in every character and pixel in the file (visible and invisible), all of the metadata, the file size, and in some cases even the location of the file on the storage medium.  Like human fingerprints, it’s rare (though not impossible) to find different files with the same hash; for nearly all purposes, therefore, each hash value is unique unless the files are exact copies.  The processing software then compares hash values and, where it finds a match, flags or discards the duplicate.

This process works fine for files.  It doesn’t work so well for e-mails.  Because there are so many different formats in which e-mails can be stored, exported, attached, nested, etc., e-mail hash values are calculated based on content properties such as the subject, body text, attachment count and attachment names, and the e-mail date.  The e-mail hash can also be calculated by including addressee information: sender, recipients, CC and BCC.  The problem is that, depending upon which properties are used to calculate the hash, the same e-mail on two different platforms (say, Microsoft Outlook and Lotus Notes) may end up with very different hash values.

Outlook and Lotus Notes, the two most popular desktop e-mail systems, have different ways of storing addressee information.  As a result, it has been our experience that, if addressee properties are included in calculating the hash values, the exact same e-mail will usually have a different hash value for each platform.  Different hash values mean duplicates go unrecognized.

There are many, many companies that use some flavor of both Outlook and Lotus Notes for some, if not all, of their custodians.  The upshot is that it’s quite easy to attempt and fail to deduplicate e-mails across custodians under such circumstances.  I’m therefore leery of buying into the blanket statement that overproduction of e-mails, by producing too many copies of the same e-mail, is necessarily an ethical violation.

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).

Because I’ve been publishing quite a few articles lately, I thought it might be a good idea to Google my own name “Gary Wiener”.  For those of you who revel in such confusion, I’m an attorney and writer in San Antonio whose name [...]]]> Here’s a bit of idle blogging levity to help you recover from Tax Day …

Because I’ve been publishing quite a few articles lately, I thought it might be a good idea to Google my own name “Gary Wiener”.  For those of you who revel in such confusion, I’m an attorney and writer in San Antonio whose name is “Gary Allen Wiener”.  The “Gary Wiener” that you see plastered all over Amazon.com, with numerous books to his credit, is “Gary Alan Wiener” from Plainview, NY, not me (although I’m certainly happy to accept credit for his bibliography). 

In addition to the very prolific Mr. Wiener, other Gary Wieners you may come across on the Interwebs are:

Gary S. Wiener (Boise, ID)
Gary Wiener (Santa Rosa, CA)
Gary D. Wiener (Arlington, TX)
Gary Wiener (Parlin, NJ)
Gary M. Weiner (Scottsdale, AZ)

I note the irony that more than half of us are writers or attorneys.  So, if you read something online by “Gary Wiener” that offends you … it was written by one of the other guys, not me.  That’s my story.

LLM had nothing to do with this article, we promise — even though it’s nice to hear an unbiased observer write what we’ve been [...]]]> Tom O’Connor is Director of the Legal Electronic Document Institute.  In this post to PivotalDiscovery.com, Tom sings the praises of hosted litigation support solutions and secure browser access to a web-based document repository.

LLM had nothing to do with this article, we promise — even though it’s nice to hear an unbiased observer write what we’ve been saying all along.  We’re especially proud that we satisfy all of the 28 elements Tom enumerates in his “What To Look For” checklist.  As baseball season is just around the corner, we couldn’t be more pleased to be batting 1.000!

The true cause of the e-discovery morass is our profession’s failure to keep pace with the dizzying advances [...]]]> Ralph Losey is one of the best blawgers (not to mention thinkers) on the subject of e-discovery.  In this very well-researched post, Ralph observes that when it comes to EDD, most attorneys are in waaay over our heads:

The true cause of the e-discovery morass is our profession’s failure to keep pace with the dizzying advances of new technologies. … To put it bluntly, most of us trial lawyers are not fully competent to practice law in today’s digital age of terabytes of potential evidence. Most of us do not know how to do e-discovery in an efficient and cost effective manner in that kind of an environment, much less employ effective quality control procedures.

There are dozens of legal blogs (“blawgs”) and RSS newsfeeds pertaining to electronic discovery issues.  Most contain lots of posts that may not be useful, on a daily basis, to attorneys and support staff.  We believe that your main questions are “What do I need [...]]]> On behalf of Liquid Litigation Management, allow me to welcome you to LLM’s BLLAWG.

There are dozens of legal blogs (“blawgs”) and RSS newsfeeds pertaining to electronic discovery issues.  Most contain lots of posts that may not be useful, on a daily basis, to attorneys and support staff.  We believe that your main questions are “What do I need to know?” and “How does this affect me?”

With BLLAWG, we hope to answer those two questions for you.  We’ll monitor all those blawgs and newsfeeds for you, and link to the best and most relevant posts here.

We’ll also share our expertise with you, from our team members who spent time in the litigation trenches beside you before entering the world of litigation support.  Please bookmark us, as we’ll be updating the BLLAWG frequently. 

Please enjoy and make full use of the BLLAWG!

Gary Wiener, Esq.
Director of Litigation Services
BLLAWG Editor