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1 Topic Pack: Ten Pitfalls of e-discovery and Document Review Call or Visit us Today sponsors Consulting Forensics Paper Discovery Electronic Discovery Magnetic Media Discovery Hosting & Review Conversion

2 Ten Pitfalls of E-Discovery and Document Review Inside this Topic Pack: Self-learning Slides Focus Paper Sample Custodian Interview Form

3 Tireless Service It s 11:45 on a Friday night, and you still have roughly 13,000 documents to review. The discovery deadline is Monday at 3:00 PM. Other firms go home at five o clock, but for Altep, the race doesn t end just because the sun goes down. As part of your team, we ll be there, working right alongside you until the deadline is met. Period. Determined to Succeed Call or Visit us Today Consulting Forensics Paper Discovery Electronic Discovery Magnetic Media Discovery Hosting & Review Conversion

4 Ten Common Pitfalls of e-discovery Self-Learning Slides

5 What to Look Out For As available technologies and techniques evolve, litigation managers and Counsel are better informed, more experienced and increasingly empowered to process, organize and maintain large ESI collections. Even so, it s easy to fall victim to one of the ten most common pitfalls simple oversights that are easily avoided, but can have a disastrous effect on your data and your case. Innovative Litigation Solutions

6 Pitfall #1: Self-Collection Questionable procedures during self-collection of ESI can cast doubt on the validity of your data Electronically Stored Data can be sensitive to handlingsimply plugging in a hard drive can modify the metadata of stored files. Employing highly-trained professionals to perform collections will allow you to avoid unnecessary risks. Experienced and certified technicians are trained to collect and preserve your data in the most defensible manner, using the most current tools and procedures approved by the courts. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Innovative Litigation Solutions

7 Pitfall #2: Hidden Data Ignoring the possibility of hidden data can lead you to overlook responsive documents Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Detecting the presence of hidden data has become an increasingly more challenging endeavor as the complexity and variety of corporate electronic files evolves. Selecting a review platform that provides integrated true native review, and implementing a standard review protocol to ensure that suspect document types are identified and examined is essential. See the Sample Hidden Data Review Protocol and checklist in this Topic Pack. Innovative Litigation Solutions

8 Pitfall #3: Searching on File Extensions Documents with misnamed and missing file extensions will not be returned by a search for a specific file extension. There are a number of searching, filtering and culling techniques can be used to significantly reduce the size of data sets before review. However, using file extensions as a filtering mechanism has proven to be more of a risk than anything else. Files can be renamed with inaccurate extensions either accidentally or deliberately or stored with no extension at all. In either case, a file extension filter will not catch these documents. For the best, most defensible result, use a file identification tool that analyzes document headers to determine their true file type. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Innovative Litigation Solutions

9 Pitfall #4: Failing to Normalize Time Zones Document date/time stamps from different time zones can result in inconsistent files dates in the final production data set. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Large cases tend to involve many custodians in multiple locations and time zones. Industry standards call for normalizing document date/time stamps to Greenwich Mean Time. During validation of the proposed production data set, verify that the responsive documents are correctly produced with the appropriate time and date. Innovative Litigation Solutions

10 Pitfall # 5: Native Metadata In producing native files, you may unintentionally provide discoverable metadata to opposing counsel If you have agreed to provide specific metadata fields in a production, and to produce one or more specific file types in their native format, realize that the opposing party will be able to process the native files and extract all of the available metadata. To prevent this, provide the agreed-upon metadata in a load file, and then scrub the metadata from the native files in the production data set. Additionally, be sure to include an MD5 hash for each native file, to guard against claims of spoliation. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Innovative Litigation Solutions

11 Pitfall #6: Un-redacted Metadata Redacted images do not mean redacted metadata When you redact a TIFF file for production, only the information in the image is obfuscated. If you have agreed to provide metadata fields such as To, From, CC, BCC and Subject, opposing counsel may be able to discover critical information, even though the production images were redacted. As with native productions, scrub the load file of any protected information, and ensure that any elements that were redacted on the TIFFs are not accidentally included in the metadata. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Innovative Litigation Solutions

12 Pitfall #7: Using the Wrong Tools Choosing the wrong tools for the job can cost you in the long run Using a generic application that lacks appropriate capabilities to support a document review project can wind up costing a great deal more than what you saved when all is said and done. Document review is widely regarded as the most expensive aspect of discovery, and the bulk of the cost is associated with staffing. Quality review platforms offer near-duplicate detection and robust tagging features, as well as sophisticated searching, clustering and workflow management tools that can help you minimize the man-hours required to review the data completely and correctly. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Innovative Litigation Solutions

13 Pitfall #8: Custodian Interviews Ask the right questions Prior to collecting electronically stored information (ESI), it is important to interview persons of interest to identify all potential custodians and data sources. During custodian interviews, ask about specific terminology, code names and acronyms pertaining to the matter. This will help you locate potentially relevant documents. In addition, ask the custodians to provide a list of passwords for any protected documents in the population, to avoid the extra time and expense associated with decryption during processing. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 See the Sample Custodian Interview form in this Topic Pack Innovative Litigation Solutions

14 Pitfall #9: Using External Servers External servers pose a variety unacceptable security risks. Never communicate details of a case via sent over a public network (i.e., the Internet.) that is sent over the internet is subject to a long list of security concerns, including eavesdropping, spoofing, viruses, spyware, phishing and scams. Make sure that your case management and review protocols prohibit use of public for distribution of case information instead, use a secure, internal network. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Innovative Litigation Solutions

15 Pitfall #10: Irregular Quality and Productivity Tracking In a fast-paced document review, quality control and productivity tracking can quickly become a big challenge. Pitfall #1 Pitfall #2 Pitfall #3 Pitfall #4 Pitfall #5 Pitfall #6 Pitfall #7 Pitfall #8 Pitfall #9 Pitfall #10 Thorough, consistent tracking of project deliverables and regular assessments of their quality are critical for the efficiency, accuracy and defensibility of any document review project. Carefully consider the nature of the data involved, the technical skills and comfort levels of the available reviewers, and the anticipated timeline to production. Then choose a review tool that offers workflow and progress monitoring tools, reports on demand, and a streamlined method of performing end-of-project QC and audits. Innovative Litigation Solutions

16 Ten Common Pitfalls in ediscovery and Document Review Throughout the course of the last ten years, ediscovery techniques and technologies have evolved dramatically, and litigation support managers have become sophisticated consumers of discovery processing, hosting and review services. Nevertheless, simple missteps can still trip up even the most experienced litigation and data management teams. To reduce complexity, prevent errors and improve your bottom line, watch out for these common pitfalls: Pitfall #1 Self-Collection Having custodians collect and submit their own documents seems harmless enough after all, they know their files and storage habits better than anyone else, so using a self-collection process should save time and money. At first glance, the task of gathering up electronic data seems simple enough, and allowing custodians to self-collect seems like it will streamline the process, circumvent needless and time-consuming protocols, and provide the best means of acquiring the relevant information. However, self-collection can actually result in a variety of potentially serious problems: Spoliation. Since custodians are not trained in proper data collection procedures, they may inadvertently alter important information, especially in the document metadata, while copying the selected files. Under-collection. Custodians may set the threshold for relevant too high, and fail to collect enough material to meet the standards for due diligence. Chain of custody. When custodians are allowed to provide their own data, the chain of custody can be compromised. Improper handling, poor documentation and an incomplete procedure are common shortcomings of the self-collection method and any of these can call the chain of custody into question. Very often, the nature of the case will have a significant impact on your decisions with regard to self-collection. For example, in the rare circumstance in which custodians are located in a single facility, and the desired document population is well-known, recently created and readily identifiable, selfcollection may prove to be a viable option. However, in most circumstances, the risks far outweigh the benefits - opposing counsel may call the collection procedures into question, criticize the self-collection as biased, and attempt to cast doubt on the validity of the data itself. To ensure a complete, correct collection of all potentially relevant, documents, first make sure that you thoroughly inventory all possible data sources (see pitfall #8.) Then, use properly trained and certified collection professionals with experience in the use of write-blocks to ensure metadata integrity to perform the actual collection. Finally, ask for a review of the technician s chain of custody documentation and procedures before the collection begins this will familiarize 2010 Altep, Inc. All rights reserved. [ SE] www. altep.com Please contact Altep for permission to reprint or distribute this article. Page 1

17 you with the standards that are being employed, and allow you to address any areas you feel need attention. Pitfall #2 Hidden Data As the volume and complexity of electronic data in the workplace continues to evolve, litigation managers should take precautions to ensure that hidden data is not being overlooked during the review. Hidden data usually occurs in the form of hidden worksheets and cells within an Excel file, or Word documents with background-matching text. Your discovery strategy should support a thorough understanding of the file types that occur in a given data population (an early case assessment tool is vital for this) and should include a means of identifying document types which are likely to include hidden data. A robust document review platform that includes fully integrated native review is a critical component, since reviewers will be better able to quickly identify and examine hidden data in the documents native formats. Implementing a hidden-data identification protocol, which includes pre-tagging suspect data types and assigning them to more experienced reviewers, can also help you catch hidden data that could otherwise damage your case. Pitfall #3 Searching on File Extensions Data managers and ediscovery providers routinely use culling and filtering strategies to reduce the accumulated data set as much as possible, thus minimizing the amount of information that must be reviewed. Various techniques can be used, including de-duplication, de-nisting, and keyword or concept searching. At first glance, simply excluding irrelevant files based on their file extensions might seem like a reasonable approach to first-pass culling. Obviously, files with extensions like.exe,.dll and.ini will not be useful, or even readable. However, it is important to realize that misnamed and missing file extensions will not be returned by a search on specific extensions. Potentially relevant files may have been saved without any extension, or even deliberately renamed with a misleading extension. To avoid this pitfall, use a tool that analyzes file headers to determine the true file type, regardless of the extension, and removes unreadable types. Pitfall #4 Failing to Normalize Time Zones Very often, larger cases will include custodians whose physical locations span multiple time zones. When documents are collected, their date and time stamps will likely appear to be disparate and non-sequential, which can be confusing and even misleading, especially where threads are concerned. Worse, if the documents are de-duplicated using date and/or time as a factor of 2010 Altep, Inc. All rights reserved. [ SE] www. altep.com Please contact Altep for permission to reprint or distribute this article. Page 2

18 comparison, and the date/time stamps are not standardized, the de-duplication will be incomplete and incorrect. You can avoid this common pitfall by simply ensuring that your discovery processing includes standardization of date/time stamps to Greenwich Mean Time across the entire document population. Additionally, when verifying the production data set, ensure that the responsive images were produced with standardized GMT date/time. Pitfall #5 Native Metadata Reviewing documents in their native format can increase productivity while improving thoroughness and accuracy. However, review managers should remember that native files will retain their metadata when produced. If you have agreed to provide specific metadata fields in a load file, and also agreed to produce particular file types in native format, the opposing party will be able process your produced files and extract all available metadata - even information you didn t specifically agree to provide. To prevent this, provide the metadata in load file and then scrub the metadata from the native files which are to be produced. This ensures that only the agreed-upon metadata is provided to the opposing party. Additionally, when producing files in native format, be sure to include a hash file for each native file on the production disk. This file can be used to safeguard the native file and the production against claims of spoliation. Pitfall #6 Un-redacted Metadata Depending on the nature of your case, you may choose to simply redact sensitive information from responsive images, rather than withhold the images and risk a challenge from the opposition. However, care should be taken when producing both redacted TIFFs and metadata in a load file. If you have agreed to provide metadata fields such as To, From, CC, BCC, sentdate and Subject, opposing counsel may be able to discover critical information, even though the production images were redacted. Be sure to scrub the correlating metadata in the load file to ensure that data elements which were redacted on the TIFFs are not accidentally included in the metadata. Pitfall #7 Using the Wrong Tools There are any number of document repository and file sharing platforms on the market today. At first glance, these applications may seem like viable and cheaper alternatives for discovery and review. However, using an application that is not designed specifically for legal document review can cost you in the long run Altep, Inc. All rights reserved. [ SE] www. altep.com Please contact Altep for permission to reprint or distribute this article. Page 3

19 Legal document review platforms offer robust tagging and workflow management tools that generic document repository applications lack tools that can help you identify, organize and assign documents for review. Documents can be grouped according to the criteria you select for example, key concepts or privilege claims. Additionally, many of these platforms provide integrated tools such as concept searching and clustering, near-duplicate detection, threading and tiff-on-the-fly. These features make it easy to ensure that all documents are reviewed properly and that only the responsive documents are included in the production set. Be sure to select a review platform that s appropriate for your reviewers technical skill set and comfort level, and thoroughly familiarize yourself with the application s feature set to ensure that it is appropriate for the type of files you ll be reviewing. In the long run, you ll likely save time and money by using the right tool for the job. Pitfall #8 Custodian Interviews Custodian interviews are an important preparatory step that can offer important insights into the nature and location of potentially relevant information. Prior to collecting any ESI, interview persons of interest in the case using a standardized questionnaire that indentifies potential data sources and records the locations of both electronic and paper files. This will help you ensure that the collection is managed and documented consistently. During custodian interviews, ask for documentation regarding any specific terminology, code names or acronyms that pertain to the matter. This will help to locate potentially relevant documents and narrow the amount of ESI to be reviewed. Additionally, asking custodians whether they routinely passwordprotect documents, and requesting a list of passwords from those who do, will help avoid the extra time and money associated with password decryption during processing. (See the Sample Custodian Interview Form in this Topic Pack) Pitfall #9 Using External Servers Public encompasses a variety of subscription-based and free services including yahoo! mail, hotmail and gmail. As a medium, public is notoriously insecure, and plagued with a long list of risks, including eavesdropping, spoofing, viruses, phishing, malware and hacking. Additionally, organizations that permit use of public systems face an increased risk of industrial espionage and information theft. According to a 2009 study by the Ponemon Institute, the average cost of insider data breaches was $6.6 million. To protect sensitive client- and case-specific information, prohibit the use of public servers within your firm. Talk to your IT department or a trusted consultant about blocking web-based mail services, and be sure to create a personnel policy that address unacceptable use of the firm s network. In the 2010 Altep, Inc. All rights reserved. [ SE] www. altep.com Please contact Altep for permission to reprint or distribute this article. Page 4

20 event that you need to dismiss a staff member for inappropriate, unsafe or unscrupulous activities, you ll need solid documentation of both your firm s standards and the individual s behavior. Pitfall #10 Irregular Quality and Productivity Tracking Very often, the pace of a discovery project will prove unpredictable. A review project that starts out at a measured pace can rapidly turn into a hurtling race toward the deadline especially if unexpected custodians or data sources are identified late in the project. Unfortunately, in the rush to keep up with influx of review-ready material, quality control can easily fall by the wayside. Ironically, careful monitoring of both quality and productivity is even more critical in projects that evolve very quickly in its absence, budgets and timelines can easily reach their breaking point in a matter of days or weeks. Selecting a review platform with real-time quality control and productivity tracking can alleviate this pressure point, giving you the ability to quickly respond to project issues as they arise. Altep, Inc. is a leader and innovator in the fields of e-discovery and document management. For more information about best practices for discovery and review, or to discuss any of our service offerings, please contact us at or visit us online at Altep, Inc. All rights reserved. [ SE] www. altep.com Please contact Altep for permission to reprint or distribute this article. Page 5

21 Custodian Interview Form Privileged and Confidential Case Information: Case: Case Summary: Interviewer: Name: Location: Date: Time: Custodian: Name: Department: Title: Telephone: Predecessor: Name: Title: Location of Custodian s Digital Data: Office Computer Office Server Office Laptop Home Personal Computer External Hard Drive USB Flash Drive MP3 Storage Device External Optical Media External Magneto Media (Zip, Backup) Cellular Telephone PDA Device (Palm, IPAQ, BlackBerry) Other: Social Networks: ` Time in Service: Qty: Requested Date: Received Date: Location of Custodian s Hardcopy Data: Office Desk Office File Cabinet Office Storage Room Home Desk Home File Cabinet Briefcase/Attaché Other: Qty: Requested Date: Received Date: Developed and distributed by Altep, Inc

22 Archive(s) or Storage Room(s) of Digital Data and Physical Hard Copies: Location: Describe: Visual/Other Media: Location: Format: Units: Requested Date: Received Date: Case Acrynomns, Codewords, Terminology, Report(s) names, etc. related to the matter: 1) 2) 3) 4) 5) 6) 7) 8) 9) Have you identified yourself and / or participated in social networks related to the matter: Blog Blog Tweet Tweet Social Network: Social Network: Social Network: Site: Site: Name: Name: Site: Site: Site: Comments and Notes: Developed and distributed by Altep, Inc