Many lawyers feel that the preservation of electronic files in civil cases should be simple sweet and cheap. After all, they reason, we are interested in the content, not some fancy-pants metadata. What they miss though is the essential function of metadata – it is not only evidence in itself that might be relevant, but it is the file folder or envelope that preserves – and possibly proves – the authenticity of the underlying content. From an evidentiary perspective the authenticity of electronic evidence may be presumed, but this presumption is rather easily rebutted.
The technology of capture is not as important as the process. More on this later.
In the context of document discovery, many outside counsel advise their clients to search for relevant e-mails, and then print them out or burn them to a CD for review. That practice is no longer sustainable as a matter of law or practice.* By ignoring the obligation to preserve not only the content of e-mail messages but the metadata associated with them, you may be putting your clients at risk of spoliation sanctions.**
Some clients who use a knowledge management system (KMS) assume that their outside counsel can use this system to prepare for litigation without incurring any costs for “e-discovery” processing. This is understandable given that knowledge management systems incorporate tools and features designed specifically for collaborative search and retrieval. However, document and knowledge management systems (KMS) are designed for businesses that create and track work product. Lawyers need very different tools. When retained on a litigation matter involving electronic data, a lawyer must be able to do the following:
- Preserve original content and metadata; ensure it is accessible if needed. Mucking about in the very system that contains the evidence, opening documents and reading them, is unacceptable from a legal point of view.
- De-duplicate and screen or cull data. Much lawyer time can be wasted on reviewing the same documents or near-duplicates.
- Capture documents outside the KMS. Just because a business has established a KMS doesn’t mean that anything outside the KMS is irrelevant. In fact, lawyers often need to go beyond documents that are captured in a centralized portal.
- Number each document with a unique serial document or page number. Rules require documents to be tracked for production purposes. E-mails do not have numbers attached to them unless the number is permanently assigned by an e-discovery process.
- Co-ordinate a team review (including associates, co-counsel and expert witnesses) of documents and flag for relevance and privilege.Web-based litigation systems allow for access by all authorized users. Most companies do not want outsiders using their internal KMS.
- Redact privileged or other non-producible information from otherwise producible documents. Redaction is only feasible on image versions of documents, not on native files.
- Draft an affidavit of documents listing all producible and privileged documents by date, author, recipient, type and title. During commercial e-discovery processing, some metadata can be captured directly into the required affidavit fields, saving about $1.50 per document.
- Produce relevant non-privileged documents to opposing parties in an acceptable non-native format. Once the review is completed, lawyers need to produce the relevant documents and this is not feasible in native format. The most commonly accepted format is a database in delimited ASCII linked to single-page TIFF images.
- Review and analyze documents and assign issues. Lawyers need to analyze documents with tools that link to a litigation database, for example CaseMap and transcript analysis, real-time transcripts etc. Corporate KM systems have many features but are not geared towards litigation. Dedicated litigation software such as Summation, iCONECT, Ringtail and Concordance all offer features that support the needs of lawyers as they progress through all the stages of trial preparation.
- Present evidence to witnesses or judge in a paperless setting. All relevant data found in the company’s system must somehow make its way to a court presentation system should the matter proceed to a hearing.
There are many pitfalls in attempting to preserve data yourself (see for example, Daticon, Inc.
"Avoiding the Spoliation Trap" Glasser-Daily Journal, SanFrancisco, April 2004
), but they boil down to one thing: the ignorance of your client’s IT staff about the legal significance of what they are supposed to be doing. Often lawyers think that just because IT staff are technical wizards they should know how to preserve data properly. Well, the preservation of electronic evidence is NOT part of the IT person’s day job, and without a combination of detailed instructions, legal overview, supervision and research, problems arise down the road.
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