Is Your e-Discovery Provider Asking The Right Questions?

Editor's note: In July, e-Discovery Law & Strategy presented the first part of this article. Here's the second half. In case you missed us last month, we've reprinted the top of the article here, and picked up at question 8. Click here for the first part, with questions 1 through 7.

As is often the case, the best way to understand the importance of a component in a process, whether the process or its elements are simple or complex, is to consider the consequences of that component's absence. In the case of e-discovery, miscommunication that might occur between an e-discovery provider and client can cause problems ranging from additional expense to collect and process electronic files properly to sanctions for failing to produce all relevant materials.

In a worst-case scenario, counsel and others could face criminal penalties for spoliation of evidence that a court determines was caused by avoidable delays and poor communication among parties.

With so much at stake, there's no likely way to overstress the importance of e-discovery providers seizing initiative to determine client needs by taking on the role of litigator and asking questions. Qualified e-discovery providers are the best experts to help counsel determine a winning course of action for complete and accurate electronic production that meets litigation goals. Indeed, just as a doctor knows the questions to ask a patient to make a proper diagnosis, an e-discovery provider who is doing his or her job knows which questions to ask to ensure that the discovery process involving electronic files is handled properly.

The Course Of Critical Inquiry: Do It Correctly

Questions a provider might ask can vary considerably, depending on case requirements and characteristics of the electronic collection. However, there are some typical characteristics of any e-discovery situation. The following questions cover issues to address in e-discovery, and can serve as a guide to counsel in working with e-discovery service providers. In those instances when a provider doesn't ask some of these questions, counsel can pose them ' or other salient queries ' to ensure discovery of common ground, and to start off together on the path to successful litigation.

For questions 1 through 7, and more e-discovery information, go to Part 1.

8. What file types need to be converted?

Most providers can handle standard formats, including Microsoft Office (Word, Excel, PowerPoint), Acrobat PDF, and Outlook PST or MSG format, among others. Less popular formats (eg, PaperPort MAX images, WordStar, etc.) may be more complicated to process and often require manual effort, costing more time and money.

Providers should also be able to produce a list of standard supported formats that have been tested and approved as a standard part of conversion. It's important to know which formats are supported up front to avoid processing delays and extra costs.

9. How should hidden information be handled on files converted to image or paper?

Many providers assume that electronic files should be converted as they would normally be printed, but that's not always a safe assumption. Some examples of why this isn't always a safe assumption follow:

• PowerPoint files can include hidden slides.
• Excel workbooks can include hidden columns, rows or sheets.
• Word documents can include hidden text, or tracked changes, or a combination of these features.
• Excluding this information can be interpreted as not meeting production requests or as spoliation, and not asking for this information during production could result in missing the smoking gun. The e-discovery provider must be prepared to address the issue of hidden information, and be able to support inclusion or exclusion of this information when processing files.

10. How should corrupted, encrypted or password-protected files be handled?

Repairing or decrypting files can drag out the discovery process and break budgets, and there's no guarantee that these files can be made usable. Use of error logs to identify files that could not be produced to opposing counsel because of corruption or encryption issues will at least disclose the existence of these files and why they could not be produced. The e-discovery provider should be prepared to address how these files will be handled and noted for production purposes.

11. What metadata date should be considered the document date?

Determining the appropriate date to use within a litigation-support system is a particularly important and complicated aspect of managing metadata, especially when also using file dates to determine whether the file is included within a relevant time frame. Different dates may be appropriate to use for different file types. Examples:

• e-Mails generally use the date sent or date received.
• Calendar items generally use date scheduled or meeting date.
• General office files typically use the create date or last modification date.

It should also be noted that operating-system file dates are often not reliable. Copying a file to CD or to disk for processing can update the operating-system date. A number of applications (such as Word and Excel) now track their own internal creation and modification dates, separately from the operating-system dates. A complication in the handling of dates is that old versions of these files use the operating-system dates to identify create and last-update dates because the application-specific dates didn't exist in earlier versions of those products.

The electronic-discovery provider should be aware of these issues associated with electronic file dates, and know how to use that information to ensure that each file type is properly handled.

12. What litigation-support system will be used to review the converted files?

Format for output from the e-discovery conversion process is partially determined by the litigation-support system used. For example, if a particular system supports page synchronization between image and text (where text can be searched, but users then must find the same image page with the reference), then it may be better to generate single-page text files so that those files can be used to insert page breaks between files. This allows tracking of pages within document text.

The e-discovery provider should be prepared to identify issues associated with management of electronic documents within the litigation-support system chosen and be able to suggest the most appropriate solution to support the goals of the production team.

Conclusion

While a good provider should take proper responsibility for the success of counsels' e-discovery efforts, attorneys and clients will be the ones who suffer the consequences of failure. One way to prevent this is to make sure that the selected provider is asking the right questions at the beginning of the discovery process.

Awareness of these questions also enables the litigator to negotiate terms with opposing counsel to ensure that production needs are met cost-effectively.

Addressing these questions will promote smooth, cost-effective and successful discovery.

Editor's note: In July, e-Discovery Law & Strategy presented the first part of this article. Here's the second half. In case you missed us last month, we've reprinted the top of the article here, and picked up at question 8. Click here for the first part, with questions 1 through 7.

As is often the case, the best way to understand the importance of a component in a process, whether the process or its elements are simple or complex, is to consider the consequences of that component's absence. In the case of e-discovery, miscommunication that might occur between an e-discovery provider and client can cause problems ranging from additional expense to collect and process electronic files properly to sanctions for failing to produce all relevant materials.

In a worst-case scenario, counsel and others could face criminal penalties for spoliation of evidence that a court determines was caused by avoidable delays and poor communication among parties.

With so much at stake, there's no likely way to overstress the importance of e-discovery providers seizing initiative to determine client needs by taking on the role of litigator and asking questions. Qualified e-discovery providers are the best experts to help counsel determine a winning course of action for complete and accurate electronic production that meets litigation goals. Indeed, just as a doctor knows the questions to ask a patient to make a proper diagnosis, an e-discovery provider who is doing his or her job knows which questions to ask to ensure that the discovery process involving electronic files is handled properly.

The Course Of Critical Inquiry: Do It Correctly

Questions a provider might ask can vary considerably, depending on case requirements and characteristics of the electronic collection. However, there are some typical characteristics of any e-discovery situation. The following questions cover issues to address in e-discovery, and can serve as a guide to counsel in working with e-discovery service providers. In those instances when a provider doesn't ask some of these questions, counsel can pose them ' or other salient queries ' to ensure discovery of common ground, and to start off together on the path to successful litigation.

For questions 1 through 7, and more e-discovery information, go to Part 1.

8. What file types need to be converted?

Most providers can handle standard formats, including Microsoft Office (Word, Excel, PowerPoint), Acrobat PDF, and Outlook PST or MSG format, among others. Less popular formats (eg, PaperPort MAX images, WordStar, etc.) may be more complicated to process and often require manual effort, costing more time and money.

Providers should also be able to produce a list of standard supported formats that have been tested and approved as a standard part of conversion. It's important to know which formats are supported up front to avoid processing delays and extra costs.

9. How should hidden information be handled on files converted to image or paper?

Many providers assume that electronic files should be converted as they would normally be printed, but that's not always a safe assumption. Some examples of why this isn't always a safe assumption follow:

• PowerPoint files can include hidden slides.
• Excel workbooks can include hidden columns, rows or sheets.
• Word documents can include hidden text, or tracked changes, or a combination of these features.
• Excluding this information can be interpreted as not meeting production requests or as spoliation, and not asking for this information during production could result in missing the smoking gun. The e-discovery provider must be prepared to address the issue of hidden information, and be able to support inclusion or exclusion of this information when processing files.

10. How should corrupted, encrypted or password-protected files be handled?

Repairing or decrypting files can drag out the discovery process and break budgets, and there's no guarantee that these files can be made usable. Use of error logs to identify files that could not be produced to opposing counsel because of corruption or encryption issues will at least disclose the existence of these files and why they could not be produced. The e-discovery provider should be prepared to address how these files will be handled and noted for production purposes.

11. What metadata date should be considered the document date?

Determining the appropriate date to use within a litigation-support system is a particularly important and complicated aspect of managing metadata, especially when also using file dates to determine whether the file is included within a relevant time frame. Different dates may be appropriate to use for different file types. Examples:

• e-Mails generally use the date sent or date received.
• Calendar items generally use date scheduled or meeting date.
• General office files typically use the create date or last modification date.

It should also be noted that operating-system file dates are often not reliable. Copying a file to CD or to disk for processing can update the operating-system date. A number of applications (such as Word and Excel) now track their own internal creation and modification dates, separately from the operating-system dates. A complication in the handling of dates is that old versions of these files use the operating-system dates to identify create and last-update dates because the application-specific dates didn't exist in earlier versions of those products.

The electronic-discovery provider should be aware of these issues associated with electronic file dates, and know how to use that information to ensure that each file type is properly handled.

12. What litigation-support system will be used to review the converted files?

Format for output from the e-discovery conversion process is partially determined by the litigation-support system used. For example, if a particular system supports page synchronization between image and text (where text can be searched, but users then must find the same image page with the reference), then it may be better to generate single-page text files so that those files can be used to insert page breaks between files. This allows tracking of pages within document text.

The e-discovery provider should be prepared to identify issues associated with management of electronic documents within the litigation-support system chosen and be able to suggest the most appropriate solution to support the goals of the production team.

Conclusion

While a good provider should take proper responsibility for the success of counsels' e-discovery efforts, attorneys and clients will be the ones who suffer the consequences of failure. One way to prevent this is to make sure that the selected provider is asking the right questions at the beginning of the discovery process.

Awareness of these questions also enables the litigator to negotiate terms with opposing counsel to ensure that production needs are met cost-effectively.

Addressing these questions will promote smooth, cost-effective and successful discovery.