Words from the Digital WarRoom

Magistrate Judge Andrew Peck, of the U.S. District Court for the Southern District of New York, issued a much-anticipated computer-assisted review opinion on Friday, acknowledging that it "appears to be the first in which a Court has approved of the use of computer-assisted review" in electronic data discovery.

The Digital WarRoom team participated in a roundtable conversation this week, with ~80 close colleagues, friends, corporate counsel, law firm attorneys, service providers, and clients.

The State Bar of Illinois held a conference last week for small law firms and solo attorneys.  Digital WarRoom participated in the event to share our new desktop e-discovery software program, Digital WarRoom Pro.

As both sides in discovery become more knowledge about electronically stored information (ESI) they also get more knowledgeable on what types of ESI often gets overlooked during the EDRM identification, preservation and processing phases. Today we are going to talk about database (DB) files.

It is very common during a data collection to collect database files even from a user’s laptop. These database files are typically not humanly readable without trying to view them through their native application and hence may be difficult to review or produce in any form.

WHAT TYPE OF DATABASE FILES MAY FALL TO THE FLOOR?
According to the folks at file-extensions.org, the most common databases are SQL databases such as Microsoft SQL server, MySQL, Firebird, SQLite (very common from Apple IOS devices-IPads etc), Oracle, IBM DB2, Microsoft Access, Microsoft Visual FoxPro, dBASE, FileMaker.

If you send your data out to get “processed” without specific direction on what to do with database files including popular files extensions related to databases db, .dbf, .accdb, .mdb, .mdf, .cdb, .fdb, .csv, .sql, you could:

1. Get nothing back
2. Get an error report
3. Get some meaningless images
4. Get some slip sheets
5. Get some tiff images that look like spreadsheets making your feel like you got what would be expected (and be wrong)
6. Get charged a lot and not have a defensible log of what was done with your data
7. All of the above

So, what should you do? First, the Sedona Conference has published some industry standards on how to deal with DB files. http://electronicdiscovery.info/forum/e-discovery-news/27564-sedona-conferencea-publishes-database-principles-electronic-discovery.html

I believe the Sedona guidelines are a great starting point for you and your case team, they recommend:

1. Absent a specific showing of need or relevance, a requesting party is entitled only to database fields that contain relevant information, not the entire database in which the information resides or the underlying database application or database engine.

2. Due to differences in the way that information is stored or programmed into a database, not all information in a database may be equally accessible, and a parties request for such information must be analyzed for relevance and proportionality.

So, you may not need to produce your databases. However, you need to know what you have and get agreement with the other party on producton format/cost shifting etc.

If you produce the database you can’t just assume the spreadsheet looking images your imaging tool generated are acceptable…….

4. A responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.

5. Verifying information that has been correctly exported from a larger database or repository is a separate analysis from establishing the accuracy, authenticity, or admissibility of the substantive information contained within the data.

To make any decisions on what to do with your databases you need to know what you have. You should be able to use an early case assessment module to quickly\cheaply get a listing of all the file types in your collection (including anything contained in email\zip files. Then you can:

• Make a determination if they are potently relevant
• Present your approach to produce to the other side
• Review the databases for responsiveness\Privilege in your review tool
• Mark and produce the DBs as agreed to with the other side

Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit has just unveiled a model order that would limit e-discovery in patent cases. The Federal Circuit Advisory Council unanimously voted Monday to adopt the proposed "Model Order on E-Discovery in Patent Cases."  

• As the Digital WarRoom software processes the dataset, it identifies and flags password protected or encrypted containers. At the completion of processing, an exception report provides details on password protected containers, and facilitates their easy export. 
• This exception report providing details on password protected containers can then be used to determine which, if any, warrant additional effort - a cost and risk management decision.  If the source or other details about the file warrant a closer look, we export them for further analysis.  On many occasions, a password may be obtained from the custodian.  File ‘password cracking’ tools may also be used to open the file. After successfully decrypting or opening an encrypted or password protected file, the resulting file content can then be processed for review in the standard manner.
• One last important consideration: use a tool that retains information that relates the accessed container content and its parent dataset; this can be useful in managing and tracking processed data. Digital WarRoom automatically captures the details of every processing step in a log that allows you to track and explain all activity, and that connection between the reviewed documents and their original container file is retained as well.

The Texas 'Loser Pays' bill related to e-discovery has been approved.  Although some compromise on the language was expected, the passing of the bill was never in doubt. However, it is still unclear what the bill means by "limit discovery". Is it to be limited in scope, duration, cost of ESI collection, processing, review? It remains undefined. It will be intriguing to follow the first few cases that are subject to the terms of this bill to learn how the Judge will limit discovery.

"I always feel like...somebody's watching me...." part 2 

The opposing side will be watching for your e-discovery mistakes

The recent tort reform proposal in Texas has everyone focused on the potential impact of a "loser pays" system, which would affect civil matters between $10,000 and $100,000.  The bill, which has passed the state House of Representatives, has provoked much discussion and controversy. However, within the text of HB274 there is a brief, easily overlooked phrase that 'appeals' to me: