Law Office Computing

Winton Woods

December 2002

The Electronic Discovery Tsunami

You may have seen the recent press release regarding the contract that Phoenix based Lex Solutio Corporation just entered into with the lawyers involved in the Enron civil litigation. I am proud to serve as part time General Counsel to Lex Solutio since I retired from the University. The Enron litigation marks a milestone in the continuing growth of the electronic discovery business. It is expected that more than 30 million, perhaps as high as 100 million, pages of various kinds of documents will be processed and put into an online repository that will provide 24 hour access to the documents over the Internet. Only a few years ago, such massive litigation information could not have been managed at all. I want to tell you about some of the details because while Enron is biggest case yet the technological aspects of what is being done there apply to cases of any size. You do not need millions of pages of discovery material to need to use this technology. I have used it in much, much smaller cases with only thousands, not millions, of pages. Michael Arkfeld has a new book coming out that is devoted to electronic discovery. If you try cases you will want to get that book when it becomes available next year.

Using Technology to Aid Traditional Discovery

Using technology in the discovery process involves two steps. The first is to convert paper documents to a digital format that is appropriately coded to insure easy access and recovery. This requires that the documents be electronically scanned to create an image or picture of the paper. These images can be indexed with its bibliographical information entered into a full text database, as well as attorney work product such as notes, issues and privilege information. Optical Character Recognition (OCR) is an additional process that can be preformed on the images that can greatly increase the effectiveness of the searching of the text found within the documents. The OCR process results in an ordinary text file like you would create with a word processor. Because the computer cannot read perfectly, particularly when the paper documents are old or multiple generation copies, there will be many errors. But, since these files are produced only for the purpose of searching the documents, that is of little concern. The text files produced by the OCR process are then treated as electronic documents and electronic discovery software is applied to search for many things. All of the documents are dropped into a litigation database program such as Concordance or Summation and then made available over the Internet. For example, one of the most popular programs such as iCONECT24|7 creates a secure, in-house information repository that allows full search of discovery documents such as company records, email, manuals, invoices, memos and reports, contracts, forms, and related metadata. Using a special passcode, lawyers, paralegals and staff in branch offices, consultants and clients can collaborate with each other in a worldwide virtual office that requires only an Internet connection. Using the powerful searching tools provided by Concordance, any user anywhere can search by date, full text or specific fields; sort, browse and create tags which can be then used to create a query or search across the entire data base of documents

Electronic Discovery

The second step is what is properly called electronic discovery or eDiscovery. A number of firms around the country, including Lex Solutio, have started to provide additional services using newly developed special electronic discovery tools to “mine” the data found in a wide variety of data formats such as spreadsheets and word processing files, as well as the many different e-mail programs. eDiscovery is the process of searching data found on hard drives or backup tapes and converting the information into a usable format for review purposes. This includes converting the file into a graphical “viewable” file such as an Adobe Acrobat “PDF” or a TIFF image, as well as extracting out all of text found within the file and all of the hidden data in files called metadata – the who, what, when, and where of a file. Metadata that the computer stores may reveal much hidden information such as date created, file location, last modified, who edited the file and what was edited or redacted. The process is straightforward but technologically difficult. Here is an outline of what happens:

· Data Mining – create an inventory of all files; ‘metadata’ information captured; file types are determined.

· Documents agre processed based upon known file types.

· Processed documents are printed or converted to an image file, or both.

· Error log is created for all unknown file types.

· Metadata can be exported

· Searchable text extracted from the original files can be exported

· Image files can be numbered, branded, and all necessary import files created

This process can reveal many things that could not be discovered without the use of the new technology. In addition to metadata, there is much information that that is in a format that simply cannot be accessed without specially designed software. For example, messages that are in an e-mail program such as Outlook or Lotus Notes are normally stored in large, unreadable database format. Electronic discovery tools allow you to find them and analyze their contents. Discovery of email attachments, such as images, documents or other e-mail messages that are attached to an e-mail message require special software to find and are often of great value in putting together a case.

Electronic discovery popped into our consciences a few years ago when Bill Gates and Microsoft were getting skewered with emails that had long since dropped from the memory of the various authors. Gates testified that he got thousands of emails every day and it is clear that even a mind as commodious as his could not remember the details. Nevertheless, when he or his staff testified that they had no recollection of some particular fact it was often so that the opposing counsel had an email or memo that contradicted that testimony. How could the lawyers have found those emails buried away in millions of pages of Microsoft corporate history? And how could they have discovered not just the text of the emails and memo but also the details of when they were edited or modified, whom they were copied to and other such information as the attachments to the messages? The answer is electronic discovery which allows you to find and understand not only email but various kinds of application files in a variety of data formats such as database, accounting and calendaring systems

Forensic Discovery

It is important to distinguish between the discovery of existing information and the recovery of destroyed electronic information. The first is called electronic discovery and the other is called Forensic discovery. Forensic discovery is a huge topic that only need be mentioned here. Forensic discovery is possible because the media used to store information often retain information that somebody has tried to delete or destroy. There really is no way to forever destroy that information because of the way it is stored on the media. Thus, hitting the delete key in a typical Windows based program only removes the information about where the file is on the hard drive and a skilled forensic technician has tools to discover the deletion and to ultimately recover it. It is said by some that the only way to destroy the electronic information is to destroy the media physically. Of course, even then copies of the electronic files may exist somewhere on backup media or may even have been kept as a paper file. Remember the old discovery mantra: if you find one copy you must assume there are three more somewhere. That may go double for electronic records.

Conclusion

These are the tools that will be applied to unravel the Enron case. If all the documents were in paper form they would fill 15,000-50,000 bankers boxes that would weigh from 1500 to 5000 tons! Quite an undertaking for three kids from Phoenix who cooked up some hot desert software!!