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Digital Discovery

& e-Evidence

BEST PRACTICES & EVOLVING LAW

Vol. 1, No. 9 | October 2001

It's Not Your Fathers Discovery: Paper and TIFF Responses Are on the Road to Obsolescence
Are you Ready to Provide native files and non-textual data?

It seems inevitable that requestors will eventually refuse to accept paper or even TIFF, when the source materials were born digital and maintained digitally in the ordinary course of business. How will your company fare when faced with a successful request for native e-mail and digital data in a format other than paper and/or TIFF? Will you be able to comply? How much risk will the corporation be exposed to as a result of compliance? How will you reference those electronic files? How will you authenticate them? How will you deal with files that do not contain text (e.g., voicemail, digital video, etc.) or that can't be reduced to paper (e.g., CAD drawings, etc.)? Evidence Exchange will be a sponsor of the BNA Litigation Forum on Electronic Discovery: Best practices and Evolving Law April 4-5, 2002 in San Fransisco, May 5-6, 2002 in Chicago and May 19-20, 2002 in New York. The conference will feature presentations by leading industry experts from around the world in the field of digital evidence.

Michael Prounis

Amendments to the Federal Rules of Civil Procedure require the producing party to affirmatively produce electronic files as part of the initial production of data, even in the absence of an explicit request. This change, made last December, will over time drive a wedge into the old boy's network of digital discovery practice, which has survived for years on the quid pro quo of "if you don't ask (for electronic data), I won't either." Compliance with this tacit understanding is a major reason why productions have largely persisted on paper or in TIFF, even as the digital age has advanced.

As we sail further into the new Millennium, however, this approach will sow the seeds of embarrassment (or worse) for unsuspecting legal support teams. Simply put, not asking for 100% of responsive data means ignoring a potential reservoir of important information.

The Technical Problem
Computer forensics has highlighted the differences between native files and their paper or TIFF renditions. Such differences include certain document properties (often referred to as metadata), comments appended to business documents (e.g., notes to word processing files and PowerPoint presentations), and formulae and hidden columns in spreadsheets. Failing to review and produce responsive content from an electronic file is a serious oversight that diminishes the credibility of your digital discovery and production process, on even the most basic cases.

Moreover, inadvertent modifications to source electronic files may be construed as intentional file alterations. These modifications result from merely opening a file, and certainly include such activities as eradicating viruses, making redactions, and expanding certain compressed file formats.

Yet, today the vast majority of email and electronic data productions are amazingly paper-based. Parties often negotiate away their rights to the native files, often because they don't know what to do with the raw data and/or because they fear the double-edged nature of the digital discovery sword. Only in the current world of digital discovery can data born digital be produced as paper or TIFF, requiring the other side to rescan it using Optical Character Recognition (OCR) to make it searchable. (Clearly, if you can get your opponent to agree to that, take those terms every time!) But, how long will this state of affairs continue? The idea that paper or TIFF is an equivalent to native format or some widely accepted "rich text" file format (e.g., Portable Document Format ("PDF")) is likely to be harder and harder to sell, particularly as courts begin to only accept PDF filings of pleadings and other submissions.

What is the rationale for providing paper or TIFF when the subject documents were born digital? And since documents born digital can be searched digitally in their native state, why does providing a searchable format constitute an unfair benefit?
Most applications are automatically linked to some type of searching functionality. From an efficiency standpoint, the production of digital data in a paper or TIFF format is a non-starter. It fails to recognize the societal transformation that has taken place in the last 15 years. When the printing press became widely available, writing tablets and papyrus were abandoned. When the analog photocopier took hold, carbon paper was discarded. How can parties who benefit on a daily basis from the advancements of modern computer technology hope to justify the use of paper or TIFF production of digital discovery data? Again, if the other side will accept it, do it every time, but don't expect to win much sympathy from the court if your opponent demands a more flexible format. Moreover, don't act as if native files and paper/TIFF are completely identical; such an attitude can cost you and your client much in terms of credibility with respect to the completeness of your effort.

A Question of Completeness
Not only are they inefficient and costly, but paper and TIFF productions of digital discovery data may also be incomplete. TIFF images are merely pictures of a document. Moreover, there are major quality problems associated with the accuracy of any OCR text conversion of TIFF images of spreadsheets and other non-e-mail business documents necessary to make the TIFF files searchable. The typical OCR drivers used to TIFF images to searchable text not only change the format of the original file, but also provide an unacceptable level of accuracy in terms of creating the searchable text component. Even with today's modern search engines, searching is far from a perfect research method. Studies going back to the mid-1980s highlight the problems of full-text searching, even when the accuracy of the source data is perfect. The ambiguities of the English language are considerable, and the research problem is compounded exponentially when the OCR converted source data may contain millions of errors. Twenty thousand pages scanned at a 97 percent accuracy level will contain approximately 1.2 million errors-and it is near impossible to achieve a 97 percent accuracy level when dealing with the non-e mail types of business documents (such as spreadsheets).

At least with PDF renderings of source digital discovery files, the conversion accuracy (from native format to PDF) improves by an order of magnitude and the document formatting problem completely disappears, as PDF maintains the look of the original electronic file. These are two of the key reasons for its adoption by the federal courts. But even PDF renderings may contain less complete information than the original file-paper and TIFF versions of source digital discovery data will surely be incomplete.

A paper printout, TIFF image, or PDF file most likely was created using the print range last invoked by the creator of the document. This means that any comments that may exist in a word processing file, spreadsheet, or graphics presentation may have been excluded from the paper, TIFF, or PDF rendering of the file. Accordingly, when that image or piece of paper is searched manually or programmatically, it will contain less information that the original source file.

The foregoing is completely unrelated to the forensic world of deleted files or earlier versions of a file. At issue is what constitutes a final file and/or whether a print-out or TIFF image contains everything that the final version of the electronic file contains. For many types of digital document, this is a meaningful difference. Again, it could be certain comments contained in a word processing file, notes appended to a PowerPoint presentation, or hidden columns in a spreadsheet. Clearly, depending on the material at issue, forensic analysis can uncover a number of other differences. But, most cases do not warrant forensic analysis. And for those that do, there is a question of who should pay for it. The bottom line is that every case will have a digital discovery and production component, and the process you use to address it must be defendable and dependable.

Anticipate Increased Scrutiny of Your Digital Discovery and Production Process
Regulators and plaintiffs will continue to place heightened emphasis on not only production format but also upon the specific process employed to comb the corporate archive of electronic records and produce the responsive information to which the requestor is entitled. Sometimes, if the facts are not on your side, it makes sense to attack the process.

How will your company hold up under increased scrutiny from a process standpoint? The "old boy network" will quickly become obsolete as previously-ignored details become more important. Prepare to answer questions such as: How good is the documentation? Which search engine and search terms were used? Did the software search e-mail attachments? Did you first search the native files or did you search the paper or the TIFF image after it was scanned/OCR'd? Was the proper universe of files searched? How did you handle the metadata? How did you handle viruses? What steps were taken to protect privileged data and trade secrets? How did you break up e-mail and attachment pairs? Did you make electronic productions of native files without first assigning/branding Document Control Numbers onto the produced files? How were redactions made? How did you process difficult to read file formats? What is the precise chain of custody? Even if you know how these issues were handled on the last case, go back and confirm these answers on the next and all future discovery requests before you produce electronic records.

Impact of New Digital Discovery and Production Tools
Fortunately, new solutions exist to help simplify and solve many of today's digital discovery problems. For instance, Evidence Exchange (www.evidenceexchange.com) has introduced a new service and evidence exchange format called the Secure Digital Photocopier ("SDP"). The SDP method always preserves the original file. Although designed specifically for digital discovery and production, in a sense, it's today's equivalent of a traditional photocopier. Instead of duplicating paper, it securely duplicates digital documents of disparate types, creating a cryptographically secure link between copy and original.

SDP relies on Surety's time-stamping technology to first extract DNA (i.e., Digital Notary Algorithm, analogous to the chemical compound that makes each person unique) from an original file and then brand that DNA string into a PDF rendering of the original source file. In the normal course of processing files, the SDP process also wraps the metadata and provides a comprehensive set of documentation detailing the electronic data conversion methods used as well as the complete chain of custody. The canonical format used to render electronic documents is fully searchable, readable and printable.

Using Evidence Exchange's SDP process, lawyers can fully automate the difficult task of finding and/or producing the e-mails, word processing files, spreadsheets, etc. that exist in compressed file formats on servers throughout today's enterprises. The SDP process also works with non-textual files (e.g., voicemail, photographs, etc.).

Authorized users can utilize the service to determine whether a produced file has been altered or to prove that an electronic archive remains pristine (i.e. preserved without change during the obligation period). Selected files can be numbered with custom prefixes and references to protective orders, etc. branded into the document footer. The SDP exchange format-print ready branded PDF-supports high-speed printing of up to 180 pages per minute per machine. Alternatively, digital evidence can be exchanged via CD-ROM or the Web. Deposition or trial exhibits can be quickly authenticated individually or in bulk, by the court or by the individual parties, via the World Wide Web, a method that has the added benefit of saving the court's valuable time.

Summary
Digital discovery and production processes must change to accommodate the new ways of conducting business dictated by the technology explosion. Likewise, as more corporate assets become only electronic based, file/document verification and authentication will become pressing issues. The good news is that the new solutions cost considerably less than the existing ones and yield a superior product. The emerging solutions, including SDP, will truly streamline the digital discovery and production process. But organizations lacking the mettle and vision to move quickly to safe harbor, whether through modified process or new approaches, may be left behind, casualties of a potentially fatal self-inflicted wound.

Michael Prounis is the CEO and co-founder of Evidence Exchange. He has worked in legal information systems since 1977. Evidence Exchange is located at 21 Penn Plaza, New York, NY 10001. The phone number is (212) 594-2500 and the e-mail address is michael.prounis@evidenceexchange.com.

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