Here Are Five Myths in eDiscovery: eDiscovery Best Practices

Over the years, I’ve heard some assumptions from legal professionals that leave me scratching my head and I have addressed some of those eDiscovery “myths” in my blogging.  Having heard a couple recently, I thought I would address five myths in eDiscovery that are some of my favorites.  Here are five myths I’ve heard often over the years – see how many of them you’ve heard.

Myth #1: Small Cases Don’t Need eDiscovery Technology

I love it when somebody tells me that their case is too small to use an eDiscovery platform.  How small are we talking?  If it’s even 1 GB of data, that can be anywhere from 15,000 pages of images to 100,000 pages of emails (sans attachments)!  Text files would even be more pages than that – as many as 650,000+ pages.  Of course, eDiscovery collections are usually a mix of file types, so the number is somewhere within that range.

Let’s estimate toward the low end of the range, say, around 25,000 pages.  The book War and Peace (which is often used as a barometer for large books to read) is 1152 pages in this version.  That’s the equivalent of nearly 22 copies of War and Peace.  Do you want to read that much?  Does anybody?  And do you want to rely on limited searching within Outlook and Office products to locate the important documents within that collection?  Even for cases as small as 1 GB, eDiscovery technology can still provide benefits.

Myth #2: Bit-By-Bit Imaging is the Only Way to Achieve a Forensically Sound Collection

As I noted earlier this week, there are times where true digital forensics are needed.  But when it’s not, there are best practices to collecting data that preserve the important metadata needed to authenticate the collected data.  And if you don’t know what you’re doing, you can make mistakes like these, so you may still need to work with a professional experienced in best practices for data collection; otherwise, you may not get a chance to correct your mistakes.

Myth #3: Electronic Files are Ready for Review As Is

Several clients in the past have asked me this question: “the files are already electronic, how hard can they be to load?”  Some assume it’s a simple matter of copy and paste to move them into the review platform.  There’s a lot more to it than that.  Files have to be processed so that metadata can be extracted and loaded into the database and text from the files can be loaded and indexed.  Emails often come in mailbox container files (such as an Outlook PST file) and have to be extracted out to be loaded individually.  TIFF files and image-only PDF files have to be OCRed to capture searchable text.  And you have to address anomalies such as corrupt files or password-protected files that can’t be processed. 

Those are just a few examples.  Some processes can literally include dozens of steps to get the data malware checked, unpacked, processed, prepped for analytics, and loaded.  It’s important to keep that in mind when setting expectations as to when collected data will be ready to be reviewed.

Myth #4: Predictive Coding Has to Be Perfect to Be Useful

Craig Ball had the best analogy for this one when he wrote years ago about the two men who encountered a bear in the woods and one man started putting on tennis shoes, causing the other man to break out in laughter, saying: “What are you doing? You can’t outrun that bear!”.  To which he replied: “I know that, but I don’t have to – all I have to do is outrun YOU!”

Predictive coding isn’t suitable for every situation, but it can save costs when managed properly and it can be as accurate or even more accurate than manual review.  It doesn’t have to be perfect, or even close.  It just has to be as good or better than manual review, which is often not that accurate.

Myth #5: Native Productions Cause Problems with Depo and Trial Exhibits

This is one of my favorite ones.  Because native productions are at the file level, the excuse that many people use for not producing ESI natively is because the production numbers are at the file level, not as page level Bates numbers.  But that’s easily addressed.  Say that you have a document with a file production number of PROD000007 and it’s a three-page Word file.  If you’re going to use that file in production and refer to specific pages, you can agree with opposing counsel in advance to print and number them as follows: PROD000007-0001, PROD000007-0002, PROD000007-0003.  How easy is that?  Pretty darn.

Hopefully, this blog post helped dispel these five myths.  Of course, the Bigfoot sighting above is obviously real … 😉

So, what do you think?  In addition to those five myths, what other eDiscovery myths have you heard?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

One comment

  1. I can’t believe that Myth #1 still exists. I destroyed that one empirically in a LegalTech panel in 2012.

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