Category Archives: Native Format

Deduplication – Craig Ball Takes Us Deeper Into The Belly of The E-Discovery Beast.

08 Wednesday Jul 2015

Posted by in Discovery, E-Discovery, Native Format

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Deduplication: Why Computers See Differences in Files that Look Alike to You, by Craig Ball, Ball In Your Court

http://tinyurl.com/oe5xd63

An employee of an e-discovery service provider asked me to help him explain to his boss why deduplication works well for native files but frequently fails when applied to TIFF images.  The question intrigued me because it requires we dip our toes into the shallow end of cryptographic hashing and dispel a common misconception about electronic documents. . . .

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The ABC’s of Fielding Data.

29 Monday Jun 2015

Posted by in Computer Forensics, Discovery, E-Discovery, Fielded Data, Legal Technology, Metadata, Native Format

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The Virtues of Fielding, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/06/29/the-virtues-of-fielding/

I am a member of the typewriter generation. With pencil and ink, we stored information on paper and termed them ‘documents.’ Not surprisingly, members of my generation tend to think of stored information in terms of tangible and authoritative things we persist in calling ‘documents.’ But unlike use of the word ‘folder’ to describe a data directory (despite the absence any folded thing) or the quaint shutter click made by camera phones (despite the absence of shutters), couching requests for information in discovery as demands for documents is not harmless skeuomorphism.  The outmoded thinking that electronically stored information items are just electronic paper documents makes e-discovery more difficult and costly. It’s a mindset that hampers legal professionals as they strive toward competence in e-discovery.

Does clinging to the notion of ‘document’ really hold us back? . . .

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Do-It-Yourself E-Discovery? Is There Such A Thing?

08 Sunday Feb 2015

Posted by in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34

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Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/ol2urvf

In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too. 

I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE

This is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]

Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next.  Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.

What’s a PST?

Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.

What About Outlook?

Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .

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E-Discovery Is Scary!

17 Saturday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Native Format, Preservation, Requests for Production

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How NOT to Produce Facebook Evidence, by Molly DiBianca, The Delaware Employment Law Blog

http://tinyurl.com/l8tvv2c

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in ‘native format.’ (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . .  .-

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Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

If Your Copier Has A Hard Drive, Is Its Stored Data Susceptible to E-Discovery?

09 Sunday Mar 2014

Posted by in Confidentiality, Databases, Discovery, E-Discovery, Law Office Management, Legal Ethics, Legal Technology, Litigation Hold, Metadata, Native Format, Office Procedures, Preservation, Sanctions, Technology

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Be Aware: Copying Machines Can Have Hard Drives And Store Copies – That’s Potential Out-Of-The-Box Discovery, by Adolph J. Levy, Out-Of-The-Box Lawyering Blog

http://tinyurl.com/mmpkd5h

Did you know that some copying machines have hard drives and store digital copies of the copies they have made? Or that the hard drives could even contain 25,000 copies that have been made? Copier + Hard Drive: A Dangerous Combination.

Lawyers are used to discovering e-mail, but now what about using discovery to find copies that a opposing party made over time? Wouldn’t you like to be at your opponent’s office and see the originals of all the copies that were being made?

Well, now, fortunately — or unfortunately — you might be able to. . . .

Was It Appropriate to Produce Word Documents as PDF Files?

06 Friday Dec 2013

Posted by in Adobe Acrobat, E-Discovery, Federal District Court Rules, Legal Technology, Metadata, Native Format, Requests for Production, Trial Tips and Techniques, Word

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Who Knew What When About the Form of Production, by Joshua Gilliland, Esq., Bow Tie Law Blog

http://bowtielaw.wordpress.com/2013/12/06/who-knew-what-when-about-the-form-of-production/

Magistrate Judge William Hussmann put a new spin on form of production analysis in Crissen v. Gupta: What form was discovery in and when was it in that form?