Tag Archives: E-Mail

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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Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.

20 Tuesday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Litigation Hold, Preservation, Relevance, Requests for Production

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The Path to E-Mail Production II, Revisited, by Craig Ball, Ball In Your Court

http://tinyurl.com/q4uozfh

This is the seventh 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.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail. Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides. Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data. Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users. They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner. In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it. Don’t leave the fox guarding the henhouse. . . .

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In Discovery, Ask A Silly Question, You’ll Get A Silly Answer.

20 Tuesday May 2014

Posted by in Discovery, Document Review, E-Discovery, Federal Rules of Discovery

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Lessons From Drafting Overly Broad Requests, by Joshua Gilliland, Esq., bowtielaw blog

http://tinyurl.com/pzykr25

Drafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.

A Requesting Party demanded an opposing party produce ‘[a]ll email and text messages sent or received on Mayo email and text messaging accounts.’

The Magistrate Judge found the request to be overly broad. . . .

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. . . .

How Not To Do E-Discovery.

15 Tuesday Apr 2014

Posted by in Discovery, E-Discovery, Litigation Hold, Preservation, Sanctions

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Fears and Loathing (and Pain) in Seattle: a Case Lesson in How NOT to Preserve and Produce Email – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/l8ujksu

If e-discovery is part of your life, you need to read this blog. Ralph Losey is not the only expert showcased here, but he is definitely one of the best. E-discovery is an area of law that is constantly evolving. If you do not work in it frequently, it is easy to get lost. Blogs such as these will help. -CCE

A recent case in Seattle provides a text-book example of how not to do e-discovery. It concludes with a sanctions order against the defendant, and the defendant’s law firm, Payne & Fears LLP. The law firm was fined $10,000, payable to the court, due to the conduct of two of its attorneys. The defendant, Corinthian Colleges, was fined another $25,000. Knickerbocker v Corinthian Colleges, Case No. C12-1142JLR, (WDWA, April 7, 2014). . . .

Learning E-Filing and E-Docketing the Hard Way.

27 Thursday Mar 2014

Posted by in Appellate Law, Courts, E-Docketing, E-Filing, Federal District Court Rules, Technology, U.S. Court of Appeals for the Federal Circuit

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A Painful Lesson in the Pitfalls of E-Filing and E-Docketing, by Scott P. Stolley and Richard B. Phillips, Jr., Texas Appellate Watch

http://tinyurl.com/ma6head

As mandatory e-filing (and the accompanying switch to e-service, e-dockets, and e-notices) spreads across Texas, we need to adopt new standard practices to ensure that we fulfill our duties to our clients. An appeal pending in the Federal Circuit provides a cautionary tale that should not be ignored. . . .