Litigation Support- Strategies For Dealing With Electronic Discovery

Transcription

1 Litigation Support- Strategies For Dealing With Electronic Discovery Kelly Scribner, Assistant National Litigation Support Administrator, Oakland, California Alex Roberts, Assistant National Litigation Support Paralegal, Oakland, California

2 Recommended E-Discovery Practices for Federal Criminal Justice Act Cases 1 2 by Douglass Mitchell and Sean Broderick I. INTRODUCTION Federal litigation across the country is experiencing an explosion of electronic data. Thanks to the computer revolution, the world has moved from being primarily paper based to one where most information is created and stored electronically. Criminal cases are not immune to this paradigm shift. As many attorneys who represent indigent criminal defendants are currently experiencing, the amount of data associated with any given case continues to grow in size and complexity each year, making the management and review of evidence, which includes paper, 1 Douglass A. Mitchell is an attorney with the law firm of Boies, Schiller & Flexner. In 1995, the Federal District Court Judges in Nevada appointed him to be a mentor in the district s criminal defense training program. In his capacity as a mentor, he trains and prepares defense attorneys to practice criminal law in the United States District Court for the District of Nevada. He has served as Chairman of the Attorney Advisory Committee on Implementation of CM/ECF electronic case filing system for the Federal District Court for the District of Nevada. Mr. Mitchell has also been a member of the Local Working Group on Electronic Technology in the Criminal Justice System for the Federal District Court for the District of Nevada and is currently a member of the Administrative Office of the United States Courts Office of Defender Services Expert Panel on Litigation Support in Criminal Justice Act Cases. Mr. Mitchell also serves as the Co-Chairman of the Board of Governors for the Organization of Legal Professionals, an organization dedicated to establishing guidelines and standards for legal professionals and vendors dealing with e-discovery issues. 2 Sean Broderick is the National Litigation Support Administrator for the Office of Defender Services (ODS). He provides guidance and recommendations to federal courts, federal defender organization staff, and court appointed attorneys on complex cases and electronic discovery, including evidence organization, document management, and trial presentation. As an investigator, mitigation specialist, and paralegal, Sean has many years of experience handling a wide range of complex criminal and civil cases, including multi-defendant, white collar fraud, federal trial, capital trial, and habeas corpus death penalty cases. He has lectured and provided hands-on training to legal professionals on various criminal defense topics internationally and throughout the United States. Page 1 of 10

3 Recommended E-Discovery Practices for FDO/CJA Attorneys 3 scanned documents, electronically stored information (ESI ), audio files, video files and a variety of other data, a significant challenge in federal criminal cases. To provide a concrete example of the consequences of expanding technology in litigation, in a recent multi-defendant Criminal Justice Act (CJA) case, the court-appointed attorneys had to develop ways to organize, review and analyze initial discovery that consisted of 240,000 images on 19 DVDs and CD Roms, an additional 185 banker boxes of paper documents (approximately 460,000 pages), and 30 forensic images of computers, servers and thumb drives which held approximately 4.3 terabytes of data. To put the 4.3 terabytes of data into context, this is the 4 equivalent of 215,000,000 pages or 86,000 banker boxes of documents. This initial set of discovery did not include third party information directly relevant to counsels defense, which totaled an additional 750,000 pages. As is evident, the challenge of processing, organizing, reviewing, and analyzing this volume of information is enormous. Though the amount of data involved in this instance is extreme for a CJA case, many CJA cases now contain relevant information which originally came from a computer system, resulting in a significant increase in the volume of information which has to be reviewed and analyzed. Consider that many individuals and small businesses have at least one computer and other associated electronic media, if not more. This means that a small business which formerly relied on a four-drawer file cabinet of paper records, now maintains the equivalent of two thousand four-drawer file cabinets full of such records in the form of ESI. 5 There are no magic bullets for addressing large volume paper and ESI cases. However, practices arising from the experiences of civil litigators and criminal practitioners who have successfully addressed the twin problems of handling enormous amounts of data and digesting 3 ESI is any electronically stored information, regardless of the media or whether it is in the original format in which it was created, as opposed to stored in hard copy (i.e. on paper). Examples of ESI include , spreadsheets, word processing documents, text or instant messaging, audio, video or any content in a digital format. 4 According to the Electronic Discovery Reference Model, generally accepted averages employed in the electronic discovery industry estimate that a terabyte of data contains approximately 50,000,000 pages of paper, or 20,000 banker boxes of documents. "Processing -- Metrics," (last visited December 9, 2009). 5 George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt? 13 Rich. J.L. & Tech. 10 (2007), (last visited December 11, 2009). Page 2 of 10

4 Recommended E-Discovery Practices for FDO/CJA Attorneys information contained in various and diverse computer file formats can be of assistance to federal defender organizations (FDO) or CJA panel attorneys who finds themselves involved in such a case. The purpose of this article is to provide recommendations on handling electronic discovery in an effective and efficient manner, so that quality representation can be provided in these cases. The list in Section II provides a broad overview of principles and practices that have proven to be useful in managing large electronic discovery cases. Notwithstanding onslaughts of information of the magnitude mentioned, it can be tempting for practitioners to fall back on the same familiar, tried and true discovery management techniques that serve so well in cases involving a handful of bankers boxes of paper documents. For better or worse, tried and true is no longer true and is not an option in modern-day litigation. Besides the issue of volume, today s cases often involve information that 6 is never put to paper. As people who have worked with electronic discovery can attest, electronic files often contain additional information that is not visible if you simply hit print and read the document. Document creation and modification dates, author, history of changes made in the document, or the identify of individuals blind copied on an are but a few examples of potentially relevant information that form part of an electronic document but not its printed counterpart. All of us have seen s that contain comments which never would have been included in a formal, printed memo - unguarded comments that can be invaluable to your client s position. However, sometimes even innocuous s become important when viewed in the context of the electronic discussion contained in the database. Because s are typically part of a large database of linked, organized and searchable records, it can be unwieldy, if not impossible, to accurately recreate electronic discussions in paper form and in that medium the context of the electronic discussion can be missed. Being unaware of, or avoiding, treasure troves of electronic information found in ESI can seriously compromise the quality of representation afforded to indigent defendants. This is why use of the proper technology, human resources, and discovery management practices are critical. II. RECOMMENDED LITIGATION SUPPORT PRACTICES In our experience with many complex civil and criminal cases involving large volumes of paper and/or electronic discovery, the following principles and practices lead to efficient and effective management of the discovery and enhanced representation of the client. 1. Understand Your Case Early. Gain an understanding of the allegations and facts of the case; talk to your client very early about who he or she communicated with, including 6 As of 1999, 93 percent of all information in the United States was generated in digital form, and only.01% of information was stored in paper format, School of Information, University of California at Berkeley, How Much Information?, Page 3 of 10

5 Recommended E-Discovery Practices for FDO/CJA Attorneys co-defendants, co-conspirators, victims, and third-party witnesses; identify the methods they used to communicate; identify any computer systems used in connection with the alleged criminal activity, even if only for ; if possible, obtain sample documents from the relevant computer systems to begin understanding vocabulary and types of documents so as to determine what type of discovery to expect, and what third party information you may want to obtain. 2. Learn How To Staff Your Case. Many criminal defense attorneys may not be accustomed to using the services of a paralegal, let alone a litigation support specialist. Understand that you may need to have some combination of litigation support personnel, paralegals, contract attorneys, investigators, and computer forensic experts as part of your team. It is critical that counsel understand the team members roles and be able to explain to the court (and the team members) why they are needed in a specific case, how they are going to be used, and how it will be more cost-effective for the team members to perform certain tasks than for counsel to do so. 3. Identify or Retain a Litigation Support Specialist to Manage the Discovery/Evidence Early in the Case. As soon as you are aware the case will involve either (i) ESI or (ii) a large volume of imaged documents, identify and retain a competent litigation support specialist. The earlier the better. Do not choose your sister s best friend s boyfriend who worked in CompUSA s tech support department until it closed. Make sure it is someone who is qualified and who has a proven track record for dealing with the kinds and quantities of discovery involved in the case. Besides knowing technology, you want someone who understands litigation, basic legal concepts, and how to effectively use computer programs specifically designed or modified for litigation purposes. While there are sometimes concerns about using experts or services from distant locations, geography is less of an issue in a digital litigation world because information can be transmitted so readily from one location to another; so consider using experienced and competent litigation support service providers from outside your district if necessary. 4. Consider Early Case Assessment (ECA) Tools. One of the most talked about new technologies in litigation support is Early Case Assessment technology. Still early in its development, ECA tools and techniques come in a variety of forms, including web-based tools that allow for a thorough front-end look at the volume of ESI before the ESI is filtered, processed and uploaded to a review tool. Theoretically, these tools are able to distinguish and cull out documents by specific dates, names contained therein, types of s (such as advertisements), and otherwise sort out materials that are irrelevant to the prosecution or defense case. There are two significant advantages derived from this type of tool: (a) early in the case, it can reduce, sometimes by large percentages, the volume of material that may need to be reviewed; and (b) the defense team can start to find relevant documents early in the case, as opposed to late in the review process. Page 4 of 10

6 Recommended E-Discovery Practices for FDO/CJA Attorneys 5. Select Appropriate Review Tools. With help from your litigation support specialist, select discovery review tools that are appropriate for the volume of discovery in your case, the number of co-defendants, and the format of the discovery. Within the criminal defense context, review usually means the process of examining and evaluating documents and ESI for inculpatory and/or exculpatory information. Typically this is an on-line review where the data is accessed on a stand-alone personal computer (PC), on a PC through a local network, or on a PC through an outside vendor using the internet. The review process can be facilitated by specialized tools that provide features such as collaborative access of multiple reviewers, varying security and access levels for different users, search and retrieval, and document coding (which is explained more fully below). 6. Use Requests for Proposal (RFP) to Get Good Pricing. The best way to get the services you want at a competitive price is to use a RFP. By developing a RFP, you will better understand what the scope of work is in your case and increase the likelihood that you will get what you want from the system selected. By providing a customized RFP to prospective vendors, you will be able to compare bids among vendors so that you are not comparing apples to oranges. In the best case scenario, the RFP identifies the features and functions counsel believe will help them efficiently and effectively review, search, organize, and analyze the voluminous discovery in a case, while at the same time reducing overall defense costs. 7. Understand the Cost/Benefit Analysis. Because budgeting for the case may be overseen by the court, you may be required to explain or justify your litigation support requests, both in terms of why the Government should be compelled to provide discovery in particular formats and why certain computerized tools and human resources are necessary for Sixth Amendment purposes, as well as how using the tools and personnel will be cost effective. With help from your litigation support specialist, gain an understanding of how to explain and justify any court-supervised requests in budgetary and Sixth Amendment terms. a. Write Funding Requests as a Legal Claim. Since electronic discovery cases are frequently going to require more resources than have been required in criminal defense cases in the past, some courts may balk at the costs. One way for attorneys to think about addressing this issue is to draft their requests like a legal claim, explaining how funding this request is necessary in order to effectively represent the client. However, simply stating that the requested resources are constitutionally necessary or citing Strickland v. Washington is insufficient. The request will have to be specific about how and why the resources and processes are necessary and how your representation will suffer without them. 8. Get Agreement on, or Advocate for, Discovery Exchange Protocols. With help from your litigation support specialist, identify and communicate to the court the protocols that should be used for exchanging discovery throughout the case. By determining the Page 5 of 10

7 Recommended E-Discovery Practices for FDO/CJA Attorneys format(s) you want the government to produce the discovery, the easier it will be for you to process, review and analyze the information that you ultimately receive. If possible, do this before the Government produces any discovery to you. Define protocols for both paper-based discovery and ESI. Be able to explain why the requested protocols are necessary, as well as how they will save time and money as compared with the Government s or the court s proposed protocols. 9. Identify Your Case Theories, Issues and Defenses Early. Identifying these will drive your subjective coding (also known as document review within the civil world). Subjective coding, usually performed by attorneys or paralegals, is the coding of a document using legal interpretation, such as identification of a possible legal issue, as the 7 data that fills a field. The coding helps to determine the framework of your review and workflow process, which are especially important in large, complex electronic discovery cases because of the enormity of information that must be reviewed and analyzed. Don t be fooled into thinking that the technology by itself will bail you out at the end. The technology is only as good as the combination of its functionality and its effective use by knowledgeable and skilled people. In these cases, one must be organized and focused in order to be prepared properly for trial. 10. Define Discovery Processing Procedures. With help from your litigation support specialist, identify and define the processes and procedures you will use to manage the discovery received from the Government or third-parties, including the loading of the data into the review tools selected for the case. Identify the processing procedures for both ESI and paper-based discovery. This should include an understanding of the types 8 9 of data (including electronic images of paper-based discovery, OCR, unitization, 7 This contrasts with objective or bibliographic coding, which uses information that is readily apparent from the face of the document, such as date, document type, author, addresses, recipients, and names mentioned in a document to create data fields. NOTE: The language used to describe the various technical terms in this article is derived largely from The Sedona Glossary: E-Discovery and Digital Information Management (Second Edition), December 2007 ( An excellent resource, The Sedona Conference is a nonprofit, research and educational institute dedicated to the advanced study of law and policy. In addition to the glossary, there are many useful materials about electronic discovery principles and practices on its web site. 8 OCR stands for Optical Character Recognition. It is the conversion of a scanned document into searchable text. The reliability of OCR text is dependent upon the quality of the printed copy and the conversion accuracy of the software. 9 The assembly of individually scanned pages into documents. Physical unitization utilizes actual objects such as staples, paper clips and folders to determine pages that belong together as documents for archival and retrieval purposes. Logical unitization is the Page 6 of 10

8 Recommended E-Discovery Practices for FDO/CJA Attorneys metadata, and native files ) that will be captured during processing and made available in the review tool. Understand what data you need and why. If using more than one review or analytic tool, you should identify any issues that may arise from transferring captured data from one tool to another. 11. Consider Coding. With help from your litigation support specialist, decide whether you are going to objectively and/or subjectively code the discovery. Make this decision early. Make this decision before you actually receive discovery from the Government. Understand how the processing technologies identified with your litigation support specialist aid the coding process. Also, if you have need to subjectively code a very large volume of documents, consider using a company that specializes in providing temporary attorneys and paralegals for document review projects. Understand the differences 12 between objective and subjective coding (defined earlier), auto-coding, and on-shore and off-shore review. They all have strengths and weaknesses and have an impact on what fields and issues you will code, and have significant effects on the pricing of the coding. Appropriate coding decisions result in much better output from the litigation process of human review of each individual page in an image collection using logical cues to determine pages that belong together as documents. This process should also capture document relationships, such as parent and child attachments (i.e. a FBI 302 report with attachments). 10 Metadata is data typically stored electronically that describes characteristics of ESI, found in different places in different forms. Metadata can describe how, when and by whom ESI was created, accessed, collected, or modified, and how it is formatted. It can be created by applications, users, or the file system. Metadata can be altered intentionally or inadvertently, and this sometimes occurs when native files are processed for litigation. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed to paper or viewed as an electronic image. 11 Native file format is the source document, as collected from the source computer or server, before any conversion or processing of the document. This file format is referred to as the native format of the document. Because viewing or searching documents in the native format may require the original application (for example, viewing a Microsoft Word document may require the Microsoft Word application), documents may be converted to a neutral format as part of the record acquisition or archiving process. Static formats (often called imaged formats ), such as TIFF or PDF, are designed to retain an image of the document as it would look when viewed in the original application by which it was created, but do not allow metadata to be viewed or the document information to be manipulated. 12 An automated process by which a software application examines and evaluates documents using pre-determined codes, and records its results. Page 7 of 10

9 Recommended E-Discovery Practices for FDO/CJA Attorneys support technology and, therefore, better work-product and representation, again demonstrating the importance of having knowledgeable and skilled personnel. 12. Learn How to Search. Reading fast is no longer sufficient. Large document cases have too much discovery for any one person, or even a small group of people, to ever read everything. Now, you must know how to use search technologies to accurately narrow the universe of documents you must read. Unless you learn to search effectively, the volume of discovery will overwhelm your ability to review and analyze it and compromise the preparation of an effective defense. The importance of this skill cannot be overstated. It takes time, and practice makes perfect. 13. Remember Keyword Searching Is Probably Not Enough. As we become more accustomed to digital evidence and information technology, we are relying more and more on keyword searching. Criminal defense attorneys need to be very cautious in relying solely on keyword searching. Recent research shows that its effectiveness is constantly overestimated by end-users, with many relevant documents not being found, and too many non-relevant documents being included in the search results. Though it is an important starting point for document review, keyword searching must be viewed only as one of the tools available, not the only tool. 14. Concept Search and Retrieval Tools, Though Expensive, Can Be of Assistance. A host of alternative search and retrieval tools have been developed to assist lawyers in finding the information they need in large electronic discovery datasets. Also known as advanced analytical search programs, some of the more prominent types of tools include Conceptual, Thesaurus, or Related Searching, Topical Searching, Content-Based Searching, Clusters of Related Phrases, and Similar Document Searching. Using a number of different algorithmic approaches, these tools generally enable practitioners to 13 This search tool will provide words that are similar or close in meaning to the primary word. NOTE: The language used to describe the various concept search and retrieval tools is from Arkfeld on Electronic Discovery and Evidence (Second Edition), Michael R. Arkfeld, Pgs to your case. This tool enables you to search documents by topics and subtopics relevant to 15 Unlike keyword search systems, content-based search systems try to determine what you mean, not just what you say. 16 This search finds all of the documents that contain clusters of related phrases. This tool deconstructs sentences linguistically, indexing relevant phrases. 17 This search finds all documents that are similar to the primary document. Page 8 of 10

10 Recommended E-Discovery Practices for FDO/CJA Attorneys review the evidence by a concept, issue or key document as opposed to simply using keywords. Instead of looking for strings of letters as words (like in keyword searching), the program will provide words, phrases or documents that are similar or close in meaning to the primary word, phrase or document. Taking the Conceptual, Thesaurus, or Related Searching tool as an example, once the meaning of the word is identified (bill of law vs. duck bill, for example), the program identifies relevant documents (documents that reference bill of laws, constitutional amendments, etc.) and excludes other documents which may have the word bill in them but do not include the concept of bill that you are interested in. This process can allow for more focused searches, and gets you to the more relevant documents more quickly. At this juncture, this kind of search is only available through web-based systems with third party vendors and costs money up-front, but it can greatly reduce the overall costs of litigating a case when dealing with a large set of data An excellent commentary discussing the challenges and potential solutions involved with searching large amounts of ESI is The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, August 2007 ( Page 9 of 10

11 Recommended E-Discovery Practices for FDO/CJA Attorneys III. CONCLUSION There is no turning back to a paper-only world. Handling electronic discovery cases can be a complicated process, especially for people who have little or no experience working with electronic data. However, if you seek help from experienced people who can offer informed guidance, properly staff your case, invest up front time to really understand your case, and then practice using the appropriate computerized litigation tools, you can become adept at handling large amounts of data. With the right education, human resources, processes, and tools, the computer can help you process, organize, and find critical information more quickly and allow you to more effectively represent your client. Page 10 of 10

12 ANNOUNCEMENT SEAN BRODERICK, NATIONAL LITIGATION SUPPORT ADMINISTRATOR, ODS-TB FEDERAL PUBLIC DEFENDER 555 TWELFTH STREET, SUITE 650 OAKLAND, CA TELEPHONE: (510) From: Sean Broderick Date: September 6, 2013 To: Criminal Justice Act (CJA) Panel Attorneys and Federal Defenders Re: Special limited time discount for CaseMap / DocManager / TimeMap bundle and TextMap. Due to the ongoing popularity and interest of the CJA and defender community and our national maintenance agreement with them, LexisNexis has once again agreed to offer the CaseMap / DocManager / TimeMap bundle to CJA panel and federal defenders offices (FDOs) at a special reduced price of $ through November 15, The GSA price for this bundle of th software product is normally $ After November 15, the bundle will be offered at a still significantly discounted rate of $ Besides the significantly reduced price, CJA panel attorneys and FDOs will not have to pay annual maintenance or subscription fees in order to receive technical support and to obtain upgrades of the CaseMap software for as long as we can continue the national maintenance agreement with LexisNexis. CaseMap is a fact management database application used to manage, organize and connect case facts, legal issues, key players, and documents. Reports can be easily produced which give snapshots of critical case detail including an outline of issues for the case, a fact chronology, and supporting people, organizations, and documents in the case. In addition, the reports produced can now also include various linked documents embedded into the PDF to allow easy sharing of key information with people who may not have access to the database. For CJA panel attorneys and defender offices who purchased their CaseMap licenses through the Office of Defender Services s national maintenance contract, you are eligible to upgrade to CaseMap 10 free of charge. Released last year, CaseMap 10 has a number of very useful features including full-text searching across the entire CaseMap case file as well as linked documents, optical character recognition, new bulk importation capabilities, increased integration with Microsoft products and customized spreadsheets which CJA panel attorneys and FDOs have found to be useful to their cases. DocManager is a CaseMap plug-in that allows users to view highlighted search hits in DocManager s near-native viewer, and bulk import and view many file formats while still providing Adobe Acrobat integration and functionality that users are accustomed to. TimeMap is an easy to use timeline graphing software that enables the user to create a timeline of events from critical case details.

13 In addition to discounts for the CaseMap / DocManager / TimeMap bundle, LexisNexis is also offering TextMap at a special reduced price of $97.00 through November 15, The GSA th price for TextMap is normally $ After November 15, TextMap will be offered at a still discounted rate to CJA Panel of $ TextMap is a transcript summary tool that can be integrated with CaseMap. TextMap offers the ability to link transcripts from case depositions, examinations, and other proceedings to case exhibits and other documents. It can also be used to play video and audio that has been synched with transcript text. Note: CaseMap / DocManager / TimeMap and TextMap are compatible with Windows operating systems. They will not run on a Macintosh OS unless it is running a copy of virtual Windows. Next steps: For CJA panel inquiries: contact Courtney Kessler with LexisNexis at or courtney.kessler@lexisnexis.com for assistance and questions. For FDO inquiries: contact Jesse Manolo at or jesse.manalo@lexisnexis.com. If you have any questions regarding the utilization of CaseMap within FDOs and CJA panel attorneys offices or whether your licenses are listed as part of the national maintenance contract, please contact either Alex Roberts or Kelly Scribner of the National Litigation Support Team at , or by alex_roberts@fd.org or kelly_scribner@fd.org. 2

14 September 6 th, 2013 LexisNexis is pleased to extend 50% off pricing to the Office of Defender Services for CaseMap Product case management software. Software Extended Maintenance Fees: As part of the new national maintenance agreement between LexisNexis and the Office of Defender Services, all new TextMap license purchased by FDOs and CJA panel attorneys in accordance with this agreement will not be required to purchase annual extended maintenance. Extended maintenance fees will be covered under the national maintenance agreement. TextMap Special Pricing: The current government price for a TextMap license is $ LexisNexis TextMap can now be purchased by Federal Defender Offices (FDO) and Criminal Justice Act (CJA) panel attorneys for $ each. CaseMap / TimeMap / DocManager Special Pricing: As a reminder, FDO s and CJA panel attorneys can purchase CaseMap, TimeMap, and DocManager for $387.50, a 50% savings. For FDO inquiries: contact Jesse Manalo with LexisNexis at or Jesse.Manalo@lexisnexis.com for assistance and questions. For CJA panel attorney inquires: contact Courtney Kessler at or Courtney.Kessler@lexisnexis.com for assistance and questions. Regards, Jesse Manalo CaseMap Specialist LexisNexis CaseMap Jesse.Manalo@lexisnexis.com direct main fax Demo:

15 Initial Discovery Assessment Checklist In cases involving large volumes of data in a variety of media and/or file formats produced as part of the discovery, the trial team should contact the National Litigation Support team and together try to answer the questions below. The answers will direct the work flow and assist the trial team in further planning their strategy and budget. 1. Is there any way to estimate the total volume of the discovery production even though some of it may come later? 2. Will we be able to access all the data? 3. Is any of the data encrypted? 4. Are there specific types of documents that will be irrelevant to our case? (i.e. pictures, executable files, junk s, etc.) 5. Are there specific types of documents that will be very important to our case? (i.e. s authored by a particular person, documents created during a specific time period, specific document types such as bank records, etc.) 6. Are there both paper documents that have been scanned and native electronic files? 7. Should we objectively code the scanned documents so that they can be integrated into the native file data set for purposes of searching and organization? 8. Will there continue to be rolling discovery productions? 9. Do we need to look at the entire production? 10. Will the documents need to be shared among the Federal Defender Office, CJA Panel Attorneys and Retained Counsel? 11. Does the trial team already have an Evidence Review Platform in their office that could handle the amount and variety of discovery involved? 12. What is the timeline for completing the review? Page 1 of 1

16 Common Litigation Support Terms Annotation Attachment Boolean search Term Chain of evidence Concept search De duplication Discovery ediscovery (ED; EDD; EED) Electronic document Electronically Stored Information (ESI) Encryption Definition The changes or additions made to a document using sticky notes, a highlighter, or other electronic tools. A memorandum, letter, spreadsheet, or any other electronic document appended to another document or . Boolean Searches use the logical operators and, or and not to include or exclude terms from a search. The "sequencing" of the chain of evidence follows this order: identification and collection; analysis; storage; preservation; transportation; presentation in court; return to owner. Maps relationships between each word and every other word in large sets of documents and then associates words based on the context in which they are used. Two techniques can be used to perform concept searches: the use of a manually constructed thesaurus which relates certain words to others or semantic indexing, a fully automated methods to show associations among words based, in part, on statistical analysis of the occurrence of proximity of certain words to others. The process of identifying (and/or removing) additional copies of identical documents in a document collection. The disclosure of facts, documents, electronically stored information and tangible objects by an adverse party. Also called "digital discovery," "electronic digital discovery," "electronic document discovery" and "electronic evidence discovery." Discovery documents produced in electronic formats rather than hardcopy. A document that has been scanned, or was originally created on a computer. Any information created, stored, or best utilized with computer technology of any type. It includes but is not limited to data; wordprocessing documents; spreadsheets; presentation documents; graphics; animations; images; e mail and instant messages (including attachments); audio, video, and audiovisual recordings; voic stored on databases; networks; computers and computer systems; servers; archives; backup or disaster recovery systems; discs, CDs, diskettes, drives, tapes, cartridges and other storage media; printers; the Internet; personal digital assistants; handheld wireless devices; cellular telephones; pagers; fax machines; and voic systems. The coding of messages to increase security and make transmission only readable by recipients with the ability to decode only by using the same algorithms.

17 Term Forensics Full text search Fuzzy search Hash Index Keyword search Load file Logical unitization Mailbox Definition For electronic data, the discovery discipline that includes the physical acquisition of digital data using a methodology that satisfies evidentiary requirements of chain of custody and authentication. Forensics can include preserving the evidence, performing code and encryption cracking, searching and retrieving elusive data, determining if files have or have not been deleted, recovering deleted files, and determining use, including Internet, network access, printing, filing, and copying. Every word in the ESI is indexed into a master word list with pointers to the location within the ESI where each occurrence of the word appears. Subjective content searching (as compared to word searching of objective data). Fuzzy Searching lets the user find documents where word matching does not have to be exact, even if the words searched are misspelled due to optical character recognition (OCR) errors. This search locates all occurrences of the search term, as well as words that are close in spelling to the search term. An algorithm that creates a value to verify duplicate electronic documents. A hash mark serves as a digital thumbprint. The searchable catalog of documents created by search engine software. Also called catalog. Index is often used as a synonym for search engine. A search for documents containing one or more words that are specified by a user. A file that relates to a set of scanned images or electronically processed files, and indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and ends. A load file may also contain data relevant to the individual documents, such as metadata, coded data, text, and the like. Load files must be obtained and provided in prearranged formats to ensure transfer of accurate and usable images and data. The process of human review of each individual page in an image collection using logical cues to determine pages that belong together as documents. Such cues can be consecutive page numbering, report titles, similar headers and footers and other logical cues. An area on a storage device where is placed. In systems, each user has a private mailbox. When the server receives , the mail system automatically puts it in the appropriate mailbox.

18 Term Metadata Mirror image Native application Native format Nesting Objective coding Definition Data typically stored electronically that describes characteristics of ESI, found in different places in different forms. Can be supplied by applications, users or the file system. Metadata can describe how, when and by whom ESI was collected, created, accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Certain metadata can be extracted when native files are processed for litigation. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed to paper or electronic image. Used in computer forensic investigations and some electronic discovery investigations, a mirror image is a bit by bit copy of a computer hard drive that ensures the operating system is not altered during the forensic examination. May also be referred to as disc mirroring, or as a forensic copy. Any application used to create and view a particular application file type. Electronic documents have an associated file structure defined by the original creating application. This file structure is referred to as the native format of the document. Because viewing or searching documents in the native format may require the original application (for example, viewing a MicrosoftWord document may require the MicrosoftWord application), documents may be converted to a neutral format as part of the record acquisition or archive process. Static formats (often called imaged formats ), such as TIFF or PDF, are designed to retain an image of the document as it would look viewed in the original creating application but do not allow metadata to be viewed or the document information to be manipulated. In the conversion to static format, the metadata can be processed, preserved and electronically associated with the static format file. However, with technology advancements, tools and applications are becoming increasingly available to allow viewing and searching of documents in their native format, while still preserving all metadata. Document nesting occurs when one document is inserted within another document (i.e., an attachment is nested within an ; graphics files are nested within a Microsoft Word document). Extracting information from electronic documents such as date created, author, recipient, CC, and linking each image to the information in predefined objective fields. In direct opposition to subjective coding where legal interpretations of data are linked to individual documents.

19 Term Optical Character Recognition (OCR) Physical unitization Proximity search Redact Spoliation Subjective coding Tagged Image File Format (TIFF) Unicode Definition A technology process that translates and converts printed matter on an image into a format that a computer can manipulate (ASCII codes, for example) and, therefore, renders that matter text searchable. OCR software evaluates scanned data for shapes it recognizes as letters or numerals. All OCR systems include an optical scanner for reading text, and software for analyzing images. Most OCR systems use a combination of hardware (specialized circuit boards) and software to recognize characters, although some inexpensive systems operate entirely through software. Advanced OCR systems can read text in a large variety of fonts, but still have difficulty with handwritten text. OCR technology relies upon the quality of the imaged material, the conversion accuracy of the software, and the quality control process of the provider. The process is generally acknowledged to be between 80 and 99 percent accurate. Physical unitization utilizes actual objects such as staples, paper clips and folders to determine pages that belong together as documents for archival and retrieval purposes. Retrieves a word only when it occurs within a specific number of lines or words of another word. A portion of an image or document is intentionally concealed to prevent disclosure of specific portions. Often done to conceal and protect privileged portions or avoid production of irrelevant portions that may contain highly confidential, sensitive or proprietary information. Spoliation is the destruction or alteration of evidence during on going litigation or during an investigation or when either might occur sometime in the future. Failure to preserve data that may become evidence is also spoliation. The coding of a document using legal interpretation as the data that fills a field. Usually performed by paralegals or other trained legal personnel. Graphic files that portray a single page of a file for viewing purposes with a.tif extension (in the case of Multi page TIFFs, output images can consist of multiple pages). Unicode provides a unique number for every character, no matter what the platform, no matter what the program, no matter what the language (using more than one byte to represent each character, Unicode enables most written languages in the world to be represented using a single character set).

20 ELECTRONIC DISCOVERY, COMPLEX CASES AND CJA PANEL RESOURCES Kelly Scribner & Alex Roberts National Litigation Support Team Oakland, CA

21 What should we do? Know your case Leverage your resources Follow the ESI protocol Use the right technology

22 Web Resources Litigation Support page of FD.org (fd.org/odstb_litigationsupport.htm) National Litigation Support Blog (NLSBlog.org) Guidelines for Administering CJA and Related Statutes (uscourts.gov/defenderservices/volume7.cfm)

23 The Criminal ESI Protocol UTIGATiotl SUPPORT > ESI PROTOCOL: JETWG RECOMMENDATIONS FOR ESI Search fd.org WHAT IS LmGATIOfl SUPPORT TifE LANGUAGE OF LmGATION SUPPORT I HAVE ELECTRONIC DATA... IIOW WHAT? The Department of Justice/ Administrative Office Joint Working Group on Electronic Technology (JETWG) has developed a recommended ESI protocol for use in federal criminal cases. Entitled ~ Recommendations for Electronically Stored I nformat ion (ESI) Discovery Production in Federal Criminal Cases~, it is the prod uct of a collaborative effort between the two institutions and it has t he DOJ leadership's full support. The primary purpose of the ESI protocol is to facilitate more predictable, cost-effective, and efficient management of WHO IS THE lfatioiial LmGATIOfl electronic discovery and a reduction in t he nu mber of disputes relating to ESI. The protocol provides a mechanism, SUPPORT TEAM through a meet and confer process, to ad dress problems a receiving party might have with an ESI production early in a case, and to discuss t he form of t he discovery t hat t he party receives. The participants on both sides of JETWG are CJA PAtiEl ATTORNEY SOFTWARE intimately familiar with t he day-to-day challenges attorneys face in criminal cases, and t he protocol reflects a pragmat ic jllllllijiliilijilllilllllii ' approach to t he problems both prosecutors and defense attorneys face when dealing with electronic discovery. JETWG negotiated and drafted the protocols over an 18-month period. The joint working group has representatives from llllftftftllllft~~!lftlf"p rl the Federal Defender Offices, OA Panel, Office of Defender Services, and DOJ, with liaisons from t he United States Judiciary. Andrew Goldsmith, t he DOJ Nat ional Criminal Discovery Coordinator, and Sean Broderick, the Nat ional litgotion Support Administrator, serve as co-chairs. Donna Elm, Federal Public Defender for t he Middle District of Florida, Doug LmGATIOff SUPPORT BLOG Mitchell, OA Panel Attorney District Representative for the District of Nevada, Bob Burke, Chief of t he Training Branch for Office of Defender Services, and Judy Mroczka, Chief of t he Legal and Policy Branch for Office of Defender Services, round

24 Selected Lit. Support Tools Free o Acrobat Reader search PDF files o IRFanView universal image reader o VLC Media Player universal media player o FTK Imager reads forensic image files Low-Cost o Adobe Acrobat Pro make PDF files searchable o CaseMap case organization and search o TrialDirector trial presentation o dtsearch Advanced search and retrieval