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Tools that make ediscovery harder

Why tools not designed for ediscovery are wrong for ediscovery
Kyle Sparks
CEDS, Senior Ediscovery Specialist

When it comes to ediscovery, many legal professionals at smaller law firms and corporations opt to use tools that were not designed for ediscovery to organize, review and deliver requested documents. Whether they know it or not, the apparent cost-savings or expedience of using tools like Microsoft Outlook® or Adobe Acrobat® for ediscovery is obliterated by the problems these programs introduce – problems solved by document review technology built for the challenging job of ediscovery. 

Why these tools are wrong for ediscovery
To begin with, these tools are not specifically designed to record the all-important metadata of individual files – the unique signature of code that allows files to be identified, located, and searched. This is problematic because federal rules of evidence for electronically stored information (ESI) rely on hash values in the metadata to prove a document’s authenticity. Without it, electronic evidence is considerably less credible, and its authenticity can easily be questioned.

Simply put, these tools do not have all the features required to conduct ediscovery efficiently. As a result, if you chose to use them, you will risk increasing the time and cost required to handle review. Also, the notion that there’s no added cost for using these technologies ignores the cost of wasted time using inefficient technology, which in the end drives up costs and drains resources.

Problems when using your email inbox as a review tool
These days, it is not uncommon to receive thousands of emails as part of discovery but using your email inbox to review them is problematic for several reasons. 

  1. No unique identifiers
    When receiving batches of emails from a client, those emails are typically sent via a “zipped” PST file. If using Outlook to review emails, you will open the zipped file in your own email inbox. Unfortunately, most email providers, including Outlook, do not assign any unique identifiers to individual emails so there is no easy way to organize, tag them for searching, or mark for privileged or not. Folders can be created, and documents dragged into them individually, but that sort of ad-hoc approach can quickly become a tedious headache. 
  2. Unable to easily ID duplicates 
    Identifying duplicate documents is an important aspect of ediscovery. Your email inbox offers no way to identify duplicates or differentiate one email from another in a search. There are ways to search documents in your inbox, but they are limited, lacking Boolean search and other capabilities.
  3. Bates numbers are not assigned and easily tracked in a database 
    Modern document-review technology solves these issues easily by assigning what’s known as a Bates number (or stamp) to each individual document. Files with a Bates number are easy to organize and can be quickly identified for search and retrieval. Non-ediscovery tools like Outlook don’t have the capability of assigning Bates numbers; which then becomes a task that must be undertaken manually, wasting time and money. Furthering the problem, load files are not automatically created.
  4. Privacy and security are at risk
    Emails in your inbox are also “live,” so the user could accidentally hit “reply” or “forward,” an obvious breach of privacy and security.
  5. Inefficiencies drive up costs
    The time needed to organize data for production is incredibly inefficient, adding hours to the process. The additional steps taken to make the process appear to be completed properly add to billable hours (hours most clients will refuse to pay).

PDF and TIFF document tools have their own issues
Tools for creating and editing PDFs share some of the same limitations as your email inbox regarding metadata – there is no way to record the metadata of individual documents. These programs also introduce new challenges, like the inability to automatically create a load file and others.

  1. Metadata is lost
    Metadata that exists in the native form of any given electronic document disappears when it’s converted to a PDF file. A PDF file is essentially an image. Individual elements within this image – documents in this case – cannot be tracked because they contain no metadata. Without metadata, a load file cannot be created, and that creates problems for anyone who needs to search for individual documents in a PDF. By contrast, any modern document-review technology can automatically create a load file in mere seconds.
  2. Inability to create load files
    But the biggest drawback with using PDF and TIFF document tools for ediscovery is the inability to create a load file, or detailed index, of the individual documents in a discovery request. Load files allow for capturing metadata (critical information) with the document providing a deeper meaning to individual documents. You would have to create a separate spreadsheet to keep track of documents and enter the pertinent native metadata manually. 
  3. Creates an unusable giant PDF 
    Another common but ill-advised practice is to place hundreds or thousands of documents in a single PDF file, rendering the documents almost entirely unsearchable – because, again, they are essentially contained in a giant PDF image. This kind of “un-unitized” data forces the recipient of such a file to go through the documents in the PDF one by one and unitize it themselves. If you are the one sending that kind of file for ediscovery, don’t expect any thank-you notes from attorneys on the receiving end. 
  4. Monetary impact 
    Most people who end up using non-ediscovery tools for ediscovery do so because these programs are already on their desktop, appearing to offer a quick, easy, inexpensive way to get the job done. However, when you consider the number of workarounds necessary to use either of these programs for ediscovery, and the time involved in creating them, the perceived savings rapidly disappear. The end-product is cumbersome and generates unnecessary work. The tragedy is that even the most basic modern document-review technology can make ediscovery a relative breeze, plus costs for these technologies have plummeted in recent years. Some document-review technologies, like Thomson Reuters eDiscovery Point even offer free training and support by certified ediscovery professionals. 

Non-ediscovery technology like Outlook and Acrobat are fine programs for their intended use, but they are the wrong tools for ediscovery. They may seem like an easy solution, but there are much easier ones. Not taking advantage of available document-review ediscovery technology does everyone a disservice – particularly clients who are footing the bill.

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