by Conrad J. Jacoby, Esq.

e-Discovery is not a natural disaster, but in some ways, it has more than a little bit in common with some of the flooding we recently experienced in the American Midwest. Floods are deceptive in appearance. From a distance, floodwaters’ calm surface looks uneventful and even serene. It’s only when you see treetops and house roofs peeking up that you are reminded of the underwater debris and destruction that resulted from the relentless push of water against everything standing in its path.

Electronic discovery, too, can look deceptively simple from a distance. In a courtroom, a judge’s order for a party to produce its relevant e-mail and corporate information may seem straightforward and unambiguous. However, responding to that demand forces a party to avoid getting snagged by any number of pitfalls that could contribute to incomplete discovery responses, improper data processing, and the wrath of the requesting party and Court. Complicated challenges hide just beneath the surface of a simple request to “identify and produce relevant electronically stored information (ESI).”

One threshold obstruction is quantifying the amount of ESI that is responsive to the discovery requests. As soon as potentially relevant ESI has been identified and collected, clients and legal teams alike want to know how much data (or, as old-school practitioners might say, “how many pages”) must be reviewed, classified, and prepared for production. Unfortunately, digital information is wrapped in multiple organizational bundles that can make it difficult to answer this question. For example, programs and users alike may aggregate multiple documents into compressed files, such as commonly-used .ZIP-format archives. A single ZIP file may contain hundreds, if not thousands, of files. A ZIP file may even contain additional ZIP files, which may contain additional ZIP files. When dealing with compressed archives, the only way to determine the actual amount of data that must be processed and reviewed is to open all archives and extract the individual files that they contain.

E-mail messages are also a notorious source of creating ambiguity regarding the amount of relevant information that must be reviewed or produced. First, are e-mail messages and their attachments considered a single document, or should they be counted individually? Reports to opposing counsel and to the court may be materially different depending on which counting system is used. Next, should multiple occurrences of an identical e-mail message be counted as one single message, or should each occurrence count as a separate document? Does the answer that the message should be counted only once change if the identical messages are found in the mailboxes of multiple custodians?  And finally, how should one count an e-mail message that has one or more .ZIP archives attached?  Answers, predictably, will vary depending on the circumstances.

An entirely separate set of hidden obstacles to responding to discovery requests for electronic documents is producing the “right” amount of information. ESI that has been collected in the format in which it was stored in the ordinary course of business may be unsuited for production. Disputes about proprietary or non-standard file formats have diminished, but particularly in the production of e-mail messages, potential for conflict still remains.

Requesting parties that seek e-mail messages produced in “native format” may not fully understand exactly what they are seeking. Often, a request for native format e-mail messages is swiftly followed up with a conference or telephone call that clarifies the request to mean that the messages should be produced in Microsoft .PST archives, which are easily read and processed by a wide variety of litigation support solutions. However, converting messages in another format into a .PST archive often drops one or more metadata fields that may have been populated in the original e-mail message. In addition, custom .PST files containing only responsive documents may bear little or no relationship to the way that these e-mail messages were actually stored in the ordinary course of business. These .PST files are convenient, but without the original organizational structure, some contextual information has been lost.

These examples are only two of the dangers lying just beneath the surface of just about every request for production of electronically stored information. Indeed, lawyers should be surprised when requests don’t involve these types of complications. How can you avoid ripping a hole in your legal case by mismanaging e-discovery?  One answer, of course, lies in not trusting the simple initial picture presented by a discovery request or by the legal team’s own early inventory of electronic information sources. To the extent that a legal team lacks the resources or expertise to address these issues head-on, working with one or more e-discovery specialists can help the team understand specific dangers—and take appropriate preventative action. Qualified consultants and e-discovery service bureaus can’t remove all the complications involved with successfully working through the e-discovery portion of a case, but their insight can keep projects on track while letting the core legal team focus on developing the rest of the client’s case.

About the Author
Conrad Jacoby is the founder of efficientEDD, a consultancy specializing in electronic discovery and litigation information management issues. A seasoned litigator as well as a technology consultant, Mr. Jacoby writes and speaks extensively on electronic discovery issues. He received his undergraduate degree, magna cum laude, from Yale University and received his law degree, cum laude, from the Georgetown University Law Center. He can be reached at conrad@efficientEDD.com ^[1].