De-Mystifying De-Duplication

I’m pleased to announce that I’ve had two articles published about de-duplication – the imposing-sounding term that flies over the head of many folks. Hopefully, these two articles will help clear the confusion.

First, “Dispelling Doubts about De-Duplication” is the July 2008 InsideTech Column on

Second, “Review: Equivio: Near-Duplicate Ediscovery Technology” was the TechnoFeature Article from TechnoLawyer on July 22, 2008.

E-Discovery Hops from CivPro to CrimPro

In a fascinating February 18, 2008 opinion, Magistrate Judge John M. Facciola references the Federal Rules of Civil Procedure regarding electronically stored information (ESI) in a seemingly mundane federal criminal matter.

United States v. O’Keefe Case No. Cr. 06-249 (D.D.C. February 18, 2008) charges the defendant (formerly employed with the U.S. Department of State stationed in Canada) with accepting "gifts and other benefits" from a co-defendant in exchange for expediting visa requests for employees of the co-defendant’s company.

handcuffs on a laptop

Judge Facciola recognizes:

"In criminal cases, there is unfortunately no rule to which the courts can look for guidance in determining whether the production of documents by the government has been in a form or format that is appropriate. This may be because the ‘big paper’ case is the exception rather than the rule in criminal cases."

and continues:

"It [would be] foolish to disregard [the Federal Rules of Civil Procedure] merely because this is a criminal case, particularly where, as is the case here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raise the same problems."

This is an intriguing but embraceable statement. Criminal cases can experience the same issues of collection and preservation of ESI that a civil matter would see. And since the issues have been (and continue to be) thoroughly vetted in the civil litigation world, there’s no reason that they can’t be equally applied in a criminal matter.

Judge Facciola details the search activities of the government which are disturbing at some points. I share Ralph Losey’s concerns that there was no mention of an attorney being involved when the Visa Unit Chief of the United States Consulate General in Toronto, Canada (presumably the defendant’s former supervisor) conducted the search for paper records and "responsive emails." Ralph does an excellent job of referring to the duties directed upon legal counsel to communicate with the key players to better understand how potentially relevant information is stored and located.

The more noteworthy issue in the opinion that others have commented upon is in the second to last paragraph where Judge Facciola writes that developing a set of "search terms or ‘keywords’ … is a complicated question involving the interplay … of the sciences of computer technology, statistic and linguistic."

Judge Facciola continues:

"Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence."

Mark Foley in his article "Expert Testimony May Be Needed for E-Discovery Keyword Searches" suggests that taking Judge Facciola’s comments literally would mean that any objection to a list of search terms would need to be supported by the testimony of an expert in the field of computer science, statistics, and/or linguistics.

I don’t believe Judge Facciola intends for us to take his comments to that extreme, but it does highlight the absolute necessity to seek agreement on search terms early and quickly. It’s also advisable to employ an expert to review the search terms, or at least earnestly discuss the issue with your e-discovery vendor. Some attorneys who may be more familiar with Westlaw or Lexis or Google type searches insist on developing a lengthy keyword list to circumvent the fear of "missing something." While I understand the concern, a foolhardy and over-broad keyword list will end up costing a party much more time and money in the long run.

“How To Go Native Without Going South”

Craig Ball never fails to amaze me with how he can eloquently define and describe a tough topic in the world of e-discovery. In his latest column for Law Technology News, Craig deftly explains the nuances with producing e-mail messages in “native” format and additionally what he calls “quasi-native” format.

E-mailMicrosoft Outlook will natively store e-mail on a local computer in what’s known as a .pst file. Craig describes the .pst file as a “container” file becuase not only does it hold e-mail, but that local .pst file will also hold Outlook’s calendar data, tasks, and contacts. So when opposing counsel requests relevant e-mail in native format and you produce the “raw” .pst file, you would be blindly producing a lot of additional irrelevant, personal, and possibly privileged information.

Craig explains how you can still produce a .pst file to the other side, only after you’ve done your privilege review and “reconstituted” a .pst file to only contain relevant e-mail messages, minus all the calendar appointments, tasks, and contacts. This is sometimes called “quasi-native” format.

Lastly, Craig pinpoints the biggest hurdle in so many circumstances – communication:

“So, talk to each other, and don’t rely on buzzwords like ‘native file format’ unless your meaning is clear. You’ll be amazed how often the question, ‘What do you mean by native file format?’ will be answered, ‘I have no idea. I just heard it was something I should ask for.'”

Link to column

You pay him, but he answers to us!

An interesting, but plausible twist to using an expert is pointed out by Larry Westcott in his Electronic Discovery Blog. The court ordered the Plaintiff to pay their expert, Mark Lanterman, the “reasonable expense for his services and the electronic copying expenses” but that he would act under the guidance of the Defendant (Quicken Loans, Inc.). Quicken is providing backup tapes with documents that are “potentially material” to the litigation but it is unable to ‘screen out privileged or proprietary information and documents” on its own.

IM security unheard of among businesses

I continue to hold true to my prediction that IM will become an even more important form of communication in the corporate world and the legal world. Today in ENN “Ireland’s IT Newswire” they break down a study from Gartner that states IM will become the ‘de facto tool’ for internal business communications by the end of 2011. That being true, companies will experience important challenges in archiving and enforcing policy on IM use. IM will become a significant piece of the e-discovery puzzle in the next few years. You think people freely speak in e-mail messages? Wait till you see some instant messages.