CBA Bits & Bytes November 2018

Is Your Opponent’s Discovery Software Withholding Valuable Evidence? By Casey C. Sullivan

Far too often, discovery is an opaque process, characterized by black-box technologies, confusing processes, and inexplicable costs. In such cases, the discovery process becomes the antith- esis of the liberal transfer of information it was designed to be. Yet, when it comes to ensuring an accurate process—and a fair shake at discovering the facts of a matter—transparency is key. This is particularly true when it comes to discovery software, where the platform used can have a significant, but often under-appreciated, impact on the outcome. Of course, some practitioners are aware that their discovery technology can impact the process. Factors such as cost, speed of review, and usability all play a factor in the software you use. Other nu- anced factors, explained below, are often overlooked. Yet it’s not just the abilities and limitations of your technology that you need to keep in mind, it’s your opponent’s as well. The first step is to know thyself. You’re comfortable with your platform (if you have one at all), but it’s important to know its capabilities and limitations. Often, there is a universe of infor- mation that your documents contain but which your platform may not reflect. Indexing. Some of the most widely used discovery platforms fail to index a surprisingly large number of common words and characters. For instance, most discovery platforms ignore and fail to index all single characters and digits, all punctuation, many special characters, and a whole subset of commonly used words. As a result, many platforms won’t even recognize the word “e-discovery,” as the hyphen is ignored and the ‘e’ treated like an “invisible” single character. The phrase “I did it” often won’t be discoverable as well, as it’s composed entirely of commonly unindexed “noise words.” (Some serious tweak- ing on the backend can typically rectify these oversights—if you’ve got the IT team to handle the challenge.) The importance of the index stems from one of the main ironies of document search—that you’re almost never search- ing the documents themselves. You’re searching your tool’s interpretation of that evidence. All eDiscovery searches are ultimately directed at the index and, typically, the index alone. No amount of special characters, parentheses or quotation marks will serve to identify a word that did not make it into the index. Exception Reports. Another important factor to consider is how your platform treats exception reports. Exception reports disclose the processing errors, or “exceptions,” encountered when preparing data for review, things like corrupt files or password-protected documents.

A platform that makes exceptions clear and transparent makes it easy to identify and resolve any errors. Alternatively, a platform that forces you to seek out exception reports or bur- ies errors under cryptic, overly technical labels, is doing you a disservice—making it harder to identify which documents you actually have access to. And if a document is important enough to be password protected, wouldn’t you want to know that? Embedded Files. Embedded files are “hidden” files that can be found in other documents, such as the database embedded in the pie chart in a presentation deck. Embedded files can be present in any discovery project, but not every platform has the ability to handle them. Some do not extract embed- ded files at all. Others are inconsistent. For your search to be comprehensive, you’ll want to make sure that embedded files are accessible. The Other Party’s Platform. It’s pivotal that you know your tool’s strengths, and of course, the weaknesses. But, because the discovery process is never one sided, you also need to be aware of the abilities and limitations of your opponent’s software. For example, if you are requesting documents that hit for a specific search phrase or keyword, will the producing party’s software be able to handle those searches successfully? It might not if the query includes commonly unindexed words and characters, such as a percentage sign. The same is true for platforms that hide exception reports, so that your opponent, and subsequently you, may have no idea that certain docu- ments were never properly ingested or searched. Typically, there is nothing wrong with using a tool that has limitations. The problem arises, however, when you do not know the limitations of a tool, be it your own or the other party’s, and the potential implications of those limitations. In order to find potentially relevant evidence, there needs to be a transparent process on both sides; and, when both sides take advantage of modern tools, they can minimize the need to fight over file formats, load files, and exception reports. Legal professionals who want to ensure a thorough, accurate, and transparent process will have some research to do—on the capabilities of their own platform and their opponent’s as well. One of the fringe benefits of looking into an opponent’s tools? Finding a better tool for your own needs. Casey C. Sullivan is an attorney in San Francisco who leads education and awareness efforts at Logikcull. Logikcull provides instant discovery for modern legal teams. Its secure, cloud- based solution helps law firms and organizations of all sizes solve the expensive, complex, and risky challenges associated with eDiscovery, internal investigations, and open records response. To learn more, visit Logikcull.com and watch a free demo.

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